10.12 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 [hiring] [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.] 

Comment 

            This instruction should be given in conjunction with Instruction 10.6 (Hostile Work Environment Caused by Supervisor —Claim Based on Vicarious Liability —Tangible Employment Action—Affirmative Defense). 

            The Supreme Court defined "tangible employment action" in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742. 761 (1998), stating, "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Accord Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013) (holding that employer may be vicariously liable for employee’s unlawful harassment only when employer has empowered that employee to take tangible employment actions against victim). 

            The meaning of the term "tangible employment action" is also discussed in Pennsylvania State Police v. Suders, 542 U.S. 129, 137-38 (2004), which resolved 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 Ellerth, 524 U.S. 742, and Faragher v. Boca Raton, 524 U.S. 775 (1998). Suders, 542 U.S. at 140. 

            Suders 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 148-49. 

            In the context of quid pro quo sexual harassment, the Ninth Circuit has held that a "tangible employment action" occurs when a supervisor who abuses his supervisory 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.