SEXUAL HARASSMENT IN THE WORKPLACE Part 5: Quid Pro Quo Harassment

This is the fifth and final entry in a 5-part series about workplace sexual harassment, the Federal and State laws against such conduct, and what you can do if you are or become a victim of harassment. Today’s entry will examine specific cases that have dealt with Quid Pro Quo sexual harassment and the facts that courts have held to be evidence of this type of harassment.

In our last article, we examined a few cases in which sexual harassment occurred through the creation of a hostile work environment. Today, we’ll be looking at a case in which harassment takes the form of a “quid pro quo” situation. As we discussed in Part 1 of our series, quid pro quo harassment occurs when an employee is offered job benefits, or is threatened with detrimental consequences, by a supervising employee in an effort to attain sexual favors. While the above situation characterizes a classic quid pro quo situation, this category of harassment is actually much broader, encompassing pretty much any situation in which an employee suffers what courts call a “tangible employment action” as a result of sexual harassment.

A tangible employment action is any action that marks a change in a person’s employment status. Common examples of tangible employment actions in sexual harassment cases include a supervisor firing, demoting, failing to promote, or even not hiring someone for refusing the sexual advances of that supervisor. These are all examples that are fairly easy for a court to recognize as tangible employment actions for the purposes of a sexual harassment claim (assuming that there is evidence to support that finding).

However, occasions do arise where determining whether a tangible employment action has been taken is not so clear cut. For example, if an employee is reassigned to another division that he or she finds unfavorable, does that reassignment constitute a tangible employment action? The answer, as always, is: it depends. Usually, the employment action has to be more than just displeasing to the employee — it has to be adverse to that employee in a way that actually causes some detriment. However, detrimental results can be measured in a lot of ways. Does the action only have to result in a loss of pay? Benefits? Or can the detriment result from a worsened working conditions? As you might imagine, the amount of grey area surrounding this issue can be the cause of a lot of contention in the courtroom.

The Case of Keeton v. Flying J: When is an Employment Action Considered “Adverse?”

In Keeton v. Flying J, the plaintiff was a young man employed by the defendant company to work as a restaurant manager at one of its interstate travel stops.1 The defendant company, Flying J assigned the plaintiff to a travel stop located in Walton, Kentucky, where the company informed him he would be employed for the next five years. Soon after starting, the plaintiff’s supervisor began making sexual advances towards him, which he refused. After a short spell, the supervisor fired the plaintiff, claiming the plaintiff was “not supporting” her.

Suspecting that his termination was the result of refusing his supervisor’s advances, the plaintiff voiced his concern to a district manager for Flying J. Shortly after this conversation, the district manager called the plaintiff and informed him that he would be reinstated to his former position, except that he would now be working at the travel stop located in Cannonsburg, Kentucky, rather than in Walton.

If you were to pull out a map, you would notice that Walton, Kentucky, located in the Northern Kentucky area, is around 136 miles from Cannonsburg, located on Kentucky’s eastern border with West Virginia. In other words, it’s a bit of a hike to Cannonsburg from the place the plaintiff called home.

The plaintiff took the position, but was forced to keep two residences — one in Walton, one in Cannonsburg — to accommodate his disabled wife, and split time between the two towns every week.

The Court’s Decision: Relocation can be a Tangible Employment Action

The U.S. Court of Appeals for the Sixth Circuit heard this case on an appeal by Flying J, after the jury at trial found that the plaintiff’s relocation amounted to a tangible employment action. The Court examined a number of case law precedents to determine whether the jury’s decision was proper. It noted first that an employee’s relocation without any other loss of hours or wages does not ordinarily constitute a tangible employment action, citing Kocsis v. Multi-Care Management, Inc., a case which Flying J argued should control the outcome of the plaintiff’s claim.2 However, the Court went on to recognize that the issue should be determined by the facts surrounding the transfer, and in doing so, found support for the jury’s verdict that the plaintiff’s relocation constituted a tangible employment action.

Although a number of the cases the Court looked at involved findings that a transfer did not qualify as sexual harassment, the Court found that of the cases it examined, the possibility was left open that a relocation involving a great distance from the victim’s original geographic area could amount to a tangible employment action.3 Distinct from these cases, which involved either shortened commutes or those extended only slightly, the Court noted that the plaintiff’s relocation was far greater in comparison, and held that the jury could have, and did, reasonably conclude that Flying J’s relocation of the plaintiff to Cannonsburg resulted in an adverse, tangible employment action.

As you can see, a tangible employment action does not have to be marked by the traditional notions of termination or demotion. However, as the Keeton court was quick to point out, whatever action is taken by an employer or supervisor must be more than just personally undesirable to the victim of sexual harassment — it must involve a detrimental change in position. In Keeton, that detrimental change was the unreasonable amount of distance the plaintiff was forced to travel as a condition of his relocation, which was in turn found to be the result of the harassing conduct of his supervisor. This outcome isn’t limited to these circumstances, however — any detrimental change in position could possibly be considered a tangible employment action in the eyes of the court.

If you’re faced with similar circumstances…

…then you should get help! Abney & McCarty are here to answer your questions about sexual harassment, and to help you determine if you’ve been the victim of a quid pro quo, or any other, harassment situation. Contact us today to learn more information.

Thanks for following our Sexual Harassment in the Workplace Series!

That wraps up our final entry tackling the ins and outs of sexual harassment. We hope you’ve enjoyed learning more about this area of law, and that you’ve come away with a deeper understanding of how sexual harassment claims are handled by our court system. We will continue to post updates about the latest developments in sexual discrimination law, and will soon be creating additional in-depth series focusing on other areas of employment law relevant to you. So please check in regularly to learn more!

1Keeton v. Flying J, Inc., 429 F.3d 259, 261 (6th Cir. 2005).
2Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6th Cir. 1996). Kocsis involved a nurse who was reassigned to another position after complaining of sexual harassment. The new position featured a lesser title, but did not result in a reduction of salary, benefits, or hours. The facts of Kocsis are arguably different from those in Keeton.
3 See, Darnell v. Campbell County Fiscal Court, 731 F.Supp. 1309 (E.D.Ky 1990) (involving a transfer to another location adding approximately 20 minutes to the plaintiff’s commute).