In case No. 04-5058 (D.C. Cir. 2/3/06), the U.S. Court of Appeals for the District of Columbia Circuit concluded that a female FBI employee failed to present evidence that her submission to her supervisor’s unwanted sexual advances resulted in a tangible employment action. Because the court found that the supervisor did not condition a significant change in the employee’s employment status upon acquiescence to his sexual overtures, the FBI was not liable for the supervisor’s conduct.

The issue decided by the court of appeals concerned whether the FBI would be held vicariously liable, or financially responsible, for the supervisor’s conduct. Neither the FBI nor the employee disputed that the supervisor engaged in sexually harassing conduct. However, the FBI could only be liable for sexual harassment if the employment actions promised by the supervisor in exchange for sexual submission by the employee constituted “a significant change in employment status,” such as hiring, firing, failing to promote, reassignment, or a change in benefits. The FBI employee alleged that four employment actions taken by the supervisor were in exchange for submission to his sexual demands. For each of these allegations, the court of appeals decided that there was no evidence to support a quid pro quo or that the benefits given to the employee were tangible employment actions.

First, the employee alleged that when her supervisor directed her to accompany him on a business trip to New York, she felt compelled to attend for fear of losing her job. The employee also feared that going to New York with the supervisor would have made her more vulnerable to his advances. The court decided that the employee failed to submit evidence that the supervisor implicitly or explicitly conditioned her travel to New York in exchange for sex.

Second, the employee asserted that her supervisor gave her a new car in exchange for submitting to sex. The court concluded that the granting of a new car did not affect a benefit of employment because she had already been assigned a take-home car by the FBI. The mere fact that the supervisor gave the employee a new car to replace the older car did not “significantly change . . . her ability to effectively perform her job duties . . .” The employee did not present any evidence that the supervisor’s approval of her access to a new car was conditioned on her sexual acquiescence.

Third, the employee alleged that when she submitted to her supervisor’s sexual demands, he increased her staff and put her in a better position for promotion. However, the court found that the employee did not have any evidence to prove that after the supervisor expanded her staff, she would necessarily be promoted.

Finally, the employee claimed that after she submitted to her supervisor, he started to increase her overtime pay. Although a pay increase could constitute a significant change in employment, when the court examined the timing of when the supervisor increased the employee’s overtime pay, it found that she received overtime pay before her submission to the supervisor. Therefore, the employee failed to establish that the increased benefits were result of her sexual submission.

The court had no doubt that the supervisor’s conduct towards the female employee was “unspeakably offensive and repulsive,” but the coercion by the supervisor was not enough to hold the FBI liable for the supervisor’s conduct. If an incident of sexual harassment arises in the workplace, it is important to immediately report the conduct to your employer instead of waiting for a “tangible employment action” to occur. After you report the sexual harassment, the employer is obligated to prevent and correct any sexually harassing behavior. Although the plaintiff did not receive a remedy from the FBI, she had also filed suit against the sexual harasser which was settled on the eve of trial.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.