10.4B CIVIL RIGHTS—TITLE VII—"TANGIBLE EMPLOYMENT" ACTION DEFINED
Tangible employment actions are the means by which a supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment action requires an official act of the enterprise, a company act. A tangible employment action consists of a significant change in employment status such as [firing] [failing to promote] [reassignment] [a significant change in responsibilities] [undesirable reassignment] or [a significant change in benefits]. [A tangible employment action occurs when a superior obtains sexual favors from an employee by conditioning continued employment on participation in unwelcome acts.]
This instruction should be given in conjunction with Instruction 10.2B (Hostile Work Environment Caused by Supervisor —Claim Based Upon Vicarious Liability —Tangible Employment Action—Affirmative Defense).
The meaning of the term "tangible employment action" is discussed in Pennsylvania State Police v. Suders, 542 U.S. 129, 137–38 (2004). The Supreme Court granted certiorari in Suders in order to resolve a split in the circuits as to whether a constructive discharge brought about by supervisor harassment constitutes a tangible employment action and bars the affirmative defense set out in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998). Suders, 542 U.S. at 140.
The Suders Court rejected the Third Circuit’s holding that a constructive discharge, when proved, constitutes a tangible employment action. Id. The Court concluded that a constructive discharge, in itself, does not constitute a tangible employment action that bars the Ellerth/Faragher affirmative defense. That defense "is available to the employer whose supervisors are charged with harassment," and is barred only if a "tangible employment action" carried out under a supervisor’s official authority was part of the conduct leading to the constructive discharge. Id. at 140–41.
In the context of quid pro quo sexual harassment, the Ninth Circuit held that a "tangible employment action" occurs when a supervisor who abuses his supervisorial authority succeeds in coercing an employee to engage in sexual acts by threats of discharge or other material job-related consequence, or fails in his efforts to coerce the employee but then actually discharges her on account of her refusal to submit to his demands. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir.2003). In such situations, the employer may be held vicariously liable for the direct supervisor’s unlawful conduct and may not take advantage of the Ellerth/Faragher affirmative defense. Id. However, an "unfulfilled, or inchoate, quid pro quo threat by a supervisor is not enough" to constitute a tangible employment action. Id. at 1170. Rather, the threat must culminate in the actual coercion of a sexual act or some other "form of sufficiently concrete employment action" on account of the employee’s refusal to submit. Id.