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Tenth Circuit Says Rape Not "Tangible Employment Action" For Purposes of Employer Strict Liability

    Client Alerts
  • March 28, 2014

Under the U.S. Supreme Court’s Faragher and Ellerth decisions, employers can be strictly liable for sexual harassment committed by a supervisor, even if they had no knowledge of the harassment, and promptly acted to end it once they became aware of it. In order to assert strict liability, the employee must suffer some “tangible employment action” from the harassment. Last month, the Tenth Circuit Court of Appeals concluded that an alleged rape fell outside this definition.


In Kramer v. Wasatch Cnty. Sheriff’s Office, the plaintiff was a bailiff who claimed that she was systematically harassed and sexually assaulted by her supervising sergeant. She did not report the harassment until well after it occurred, but sued under Title VII, claiming that her employer was strictly liable for the sergeant’s conduct. The Tenth Circuit disagreed, finding no legal basis for strict liability under the Faragher/Ellerth standard.


The court stated that while rape is a severe form of sexual harassment, that was not the question at hand. A tangible employment action must be one that involves some official action by the employer. While a rape undoubtedly changes the terms and conditions of employment, conduct that does not involve some exercise of employer authority will not constitute a tangible employment action.

This conclusion does not mean that the plaintiff cannot pursue her sexual harassment claim against the Sheriff’s office. However, the Tenth Circuit concluded that the employer will not be held strictly liable. At trial, it will have the opportunity to assert the Faragher/Ellerth affirmative defense that the plaintiff had a reasonable opportunity to report the harassing conduct yet failed to take advantage of it. The court refused to grant the employer summary judgment on this point, but it will have the opportunity to argue it at trial before a jury.