Recently, in Harrison County, a county employee, an administrative assistant at a community action council filed a lawsuit claiming that her employer was liable under the Kentucky Civil Rights Act. (KCRA). This is a good example to show just how hard it can be to win a discrimination case or sexual harassment case. After you read the facts, you would have thought that it was a slam dunk for the female plaintiff. But, she actually lost at the trial level and had to appeal to get the case back to trial.
In Cobb v. Community Action Council (CAC) for Lexington-Fayette, 2008 WL 1087122 (Ky.App), Ms. Cobb was employed by CAC since 1999 as an administrative assistant. In 2002 a Mr. Hinton became her boss. Ms. Cobb alleged that from April 2002 to September 2002, Mr. Hinton made inappropriate and sexual comments to her. He indicated to her that he wanted a sexual relationship. She told him ‘no.’ But in September of 2002, Mr. Hinton exposed himself to her. He did so again in October 2002. From October 2002 through April 2003, Mr. Hinton forced Ms. Cobb to perform oral sex on him six to twelve times. He would threaten her with her job if she told or did anything about it. In early 2003, the staff members all got together and had a secret meeting to discuss Mr. Hinton’s intimidating management style. On February 27, 2003, the entire staff had a meeting with CAC senior management team to discuss Mr. Hinton. The sexual advances and comments and threats were all discussed. Except Ms. Cobb did not say anything for fear of losing her job and because she was married. Mr. Hinton was thereafter interviewed and denied all allegations of sexual harassment.
A few days after the sister of a supervisor of CAC told her that she was sexually harassed by Hinton when she worked for CAC. But the supervisor did not tell anyone this. In March, CAC was made aware of another person claiming sexual harassment. Then in March 2003, Mr. Hinton made Ms. Cobb go to a meeting with him where he again sexually assaulted her. On April 29, 2003, CAC placed Mr. Hinton on six months probation. Ms. Cobb was horrified and thereafter had a nervous breakdown. Finally on May 1, 2003, Ms. Cobb told CAC, through her lawyer, what had happened. On May 19, 2003, Ms. Cobb began to see a psychiatrist and rape crisis counselor. On June 12, 2003, CAC terminated Mr. Hinton.
Now you would think after reading the above, that this case was a slam dunk. A no brainer. But, no it was not and because of recent Federal and Supreme Court rulings, I will explain to you why.
Ms. Cobb filed claims against CAC under KCRA for quid pro quo sexual harassment and sexually hostile work environment to name two of her counts to her complaint. The trial court granted CAC’s motion for summary judgment and dismissed the case. Ms. Cobb appealed. On appeal, the appellate court held that the lower court was wrong in granting the summary judgment and remanded the case back. The reasons are as follows.
Traditionally, sexual harassment claims have been characterized as either “quid pro quo” or “hostile work environment.” Quid pro quo harassment occurs when “job action is offered, threatened or taken as a quid pro quo for a response to sexual advances.” Hostile work environment discrimination exists “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The facts as stated above to the appellate court were sufficient evidence to defeat a motion of summary judgment on this issue. But, that did not resolve the critical issue which is the nature and extent of CAC’s liability for Hinton’s actions.
The labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability. The US Supreme Court held that an employer is strictly liable for either form of harassment committed by a supervisor only when it culminates in a “tangible employment action.” If there is no tangible employment action, the employer may still be liable, but it is provided with two affirmative defenses. (Ellerth/Faragher affirmative defense). The defense comprises two elements: 1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. A tangible employment action is like a firing or failing to promote action.
The question before this appellate court was “whether an employer can be held strictly liable when an employee submits to her supervisor’s sexual demands because she reasonably believes that her benefits or continued employment are conditions upon her acquiescence.” The Second and Ninth Circuits have adopted reasoning which hold that an employee’s submission to a supervisor’s sexual advances in order to retain employment constitutes a tangible employment action and hence subjects the employer to strict liability. But, a subsequent US Supreme Court Case “Suders” may have nullified that rationale. And this court followed “Suders” and held that CAC was entitled to a Ellers/Faragher defense and that based on the facts, since there were factual issues still unresolved, that summary judgment was not proper and the case was sent back to the trial court.
I am sure you are more than confused and maybe even a little upset after reading the above and seeing what happened. But, in Kentucky, as in all states, there are laws and case law which protect an employee and there are laws and case law that protect the employer. It is knowing which law and case law applies to help you figure out whether or not you have a claim for sexual harassment or a hostile work environment case.
If you have been the subject of sexual harassment or a hostile work environment discrimination, please call and speak to a Kentucky sexual harassment lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!