Harassment victims who suffer a "tangible employment action," which the Supreme Court defines as a "significant change in employment status such as hiring, firing, failure to promote, reassignment, or a decision causing a significant change in benefits," enjoy unfettered recourse when they sue their employers. However, victims who do not endure what a court will deem a "tangible employment action" will have their prima facie case of harassment then rendered vulnerable to the interposition of an affirmative defense by a defendant-employer, who will escape liability if it can show "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." In a previous article, I discussed a phenomenon in the law whereby victims of sexual harassment who fail to report it, but who submit to the advances of their harassers actually fare better under the law than do similarly-situated victims who passively resist the advances, because a submission predicated on the retention or improvement of one's professional status quo has been deemed a tangible employment action by two courts of appeals. This article deals with the availability and application of the Faragher/Ellerth defense where a victim, rather than voluntarily engaging in relations with her harasser, is subjected to a one-time incident that rises to the level of being actionable, like a sexual assault or rape. Although the Supreme Court has "approve[d]" the determination of a circuit court that an instance of sexual assault "did not preclude the employer from asserting the Ellerth/ Faragher affirmative defense" where it was not promptly reported, the Court has not voiced an opinion on the issue of whether a single incident of sexual harassment can ever serve as a tangible employment action. The Eighth Circuit has held that even where a victim reports a single incident of abuse immediately, an employer may be insulated from liability where it acts immediately to rectify the problem.
Kerri Lynn Stone,
License to Harass: Holding Defendants Accountable for Retaining Recidivist Harassers
, 41 Akron L. Rev. 1059
Available at: http://ecollections.law.fiu.edu/faculty_publications/210