IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FOR PUBLICATION
Filed: March 2, 1998
SANDRA SANDERS, )
) DYER CHANCERY
PLAINTIFF-APPELLEE, )
) Hon. William H. Inman,
v. ) Senior Judge
) Sitting by Designation
DAVID W. LANIER AND )
STATE OF TENNESSEE, )
) No. 02S01-9706-CH-00060
DEFENDANTS-APPELLANTS. )
FILED
March 2, 1998
Cecil Crowson, Jr.
FOR APPELLANT STATE OF: FOR APPELLEE Appellate C ourt Clerk
TENNESSEE:
Jerrold L. Becker
John Knox Walkup Scarlett A. Beaty
Attorney General & Reporter Lockridge, Becker & Valone, P.C.
Knoxville
Michael E. Moore
Solicitor General
Elizabeth Martin
Assistant Attorney General
OPINION
COURT OF APPEALS AFFIRMED AS MODIFIED HOLDER, J.
OPINION
The issue with which we are confronted is whether the State may be liable
to a county employee for employment discrimination under the Tennessee
Human Rights Act ("THRA") when the county employee is under the supervision
of a state judge who commits quid pro quo sexual harassment against the county
employee. The trial court answered the question in the negative holding that the
State was not the plaintiff's employer under the THRA. The Court of Appeals
reversed and held that the THRA imposed liability on the State under an
economic realities test. For the reasons set forth in this opinion, we affirm as
modified the appellate court's reversal of the trial court's judgment.
FACTS
The plaintiff alleges that she was employed as a Youth Services Officer
with the Dyer County Juvenile Court. Youth Services Officers receive their
compensation from the County. 1 The plaintiff, however, maintains that
Chancellor David Lanier possessed the authority to hire, discipline, promote, and
terminate her and all other juvenile court employees. Judge Lanier was a state
judge and presided over both the chancery and juvenile courts in Dyer County. 2
The plaintiff contends that Judge Lanier sexually harassed her. Her
allegations include both sexual assault ("grabbing her breast and buttocks") and
unwelcome sexual advances. She alleges that she repeatedly rejected Judge
Lanier's unwelcome sexual advances and that Judge Lanier demoted her from
her supervisory position in retaliation for rejecting his sexual advances. She
1
Tenn. Code Ann. § 37-1-106.
2
The 1972 Pub lic Ac ts 16 76-1 680 , Ch. 8 63 cr eate d a law and e quity c ourt in Dyer C oun ty,
Tennessee, and conferred Judge Lanier's jurisdictional authority over the juvenile court of Dyer
Cou nty.
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further alleges that Judge Lanier denied her an increase in salary and
"unilaterally" altered her job requirements on a weekly basis.
The plaintiff filed suit against the State of Tennessee ("State") alleging
violations of the THRA. The defendant filed a motion to dismiss for failure to
state a claim for which relief can be granted. Tenn. R. Civ. P., Rule 12.02(6).
The trial court found that the State was not the plaintiff's employer for purposes
of THRA liability and dismissed the plaintiff's claim for failure to state a cause of
action. The appellate court adopted the federal courts' economic realities test 3
and the common law test of control and reversed the trial court.
DISCUSSION
The plaintiff alleges that Judge Lanier conditioned her employment
benefits on sexual favors. The plaintiff further alleges that Judge Lanier
possessed supervisory powers over her position and had the actual or apparent
authority to alter the terms and conditions of her employment.
The plaintiff's claim against Judge Lanier can best be classified as quid
pro quo harassment.4 Quid pro quo harassment occurs when a supervisor
conditions employment benefits on sexual favors. Kelly Carr v. U.P.S., ___ S.W.
___ (Tenn. 1997). To prevail under a quid pro quo theory of sexual harassment,
a plaintiff must show:
3
The economic realities test focuses on one's ability to control a plaintiff's job performance
and em ployme nt oppor tunities. Eyerman v. Mary Kay Cosmetics, 967 F.2d 213, 219 (6th Cir.
1992).
4
The plaintiff's complaint also sets forth a claim which could be properly classified as a
supervisor-created hostile environment. Whether the employer is liable for its supervisor's actions
in hostile work environment claims depends on: "(1) whether the supervisor's harassing actions
were foreseeable or fell within the scope of employment; and (2) even if they were, whether the
emp loyer respo nded a dequa tely and effe ctively to nega te liability." Carr v. U.P.S., ___ S.W.2d
___ (Te nn. 1 997 ). For the re aso ns s tated in this o pinion , we fin d tha t Jud ge La nier's actio ns fe ll
within th e sco pe of e mp loyme nt. W hethe r the Sta te resp onde d ade quate ly to Judg e Lan ier's
harassment shall be decided on remand.
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(1) that the employee was a member of a protected class; (2) that
the employee was subjected to unwelcome sexual harassment in
the form of sexual advances or requests for sexual favors; (3) that
the harassment complained of was based on sex; (4) that the
employee's submission to the unwelcome advances was an
express or implied condition for receiving job benefits or that the
employee's refusal to submit to the supervisor's demands resulted
in a tangible job detriment; and (5) the existence of respondeat
superior liability.
Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir. 1992).
In Carr, we held that an employer is strictly liable for a supervisor's quid
pro quo harassment under the doctrine of respondeat superior. Carr, ___
S.W.2d at ___. Strict liability is imposed because: (1) a supervisor is the alter
ego of the employer; and (2) a supervisor has the actual or apparent authority to
alter an employee's terms or conditions of employment. "Under this alter ego
theory of liability, a supervisor's acts within the scope of employment are imputed
to the employer." Id.
As to the first four elements, the plaintiff is a member of a protected class.
She has alleged that she was subject to unwelcome sexual advances and that
the harassment was based on sex. She has further alleged that she suffered
adverse job consequences as a result of her rejecting Judge Lanier's sexual
advances.
Our last inquiry is whether Judge Lanier was acting within the scope of his
employment. We believe that, when an employer empowers a supervisor with
the ability to take actions that affect the employment status of subordinates, the
supervisor's acts taken or threats made within the actual or apparent scope of
authority are imputed to the employer. Ellerth v. Burlington Industries, Inc., 102
F.3d 848, 860 (7th Cir. 1996). Accordingly, respondeat superior is applicable
under a quid pro quo theory when: (1) an employer empowers a supervisor with
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the ability to alter job benefits; (2) the supervisor abuses the empowerment by
making a subordinate's job benefits contingent upon receipt of sexual favors; and
(3) the subordinate reasonably believes that the supervisor has the actual or
apparent authority to alter the subordinate's job benefits.
The State, either directly or indirectly, empowered Judge Lanier with the
authority to alter the plaintiff's job benefits. The plaintiff alleges that Judge
Lanier conditioned her job benefits upon the receipt of sexual favors and that she
sustained adverse job consequences as a result of her rejection of the sexual
advances. The plaintiff's complaint further indicates that she believed that Judge
Lanier had the actual or apparent authority to hire, discipline, promote, demote,
or terminate her and all other juvenile court employees. The plaintiff's
allegations, if true, would support a finding of respondeat superior liability.
The THRA prohibits an employer from discriminating against a person or
an individual. See Tenn. Code Ann. § 4-21-401(1) (stating "[i]t is a discriminatory
practice for an employer to . . . discriminate against an individual with respect to
compensation, terms, conditions or privileges of employment."). "Employer" is
defined as including "the state, or any political or civil subdivision thereof, . . . or
any person acting as an agent of an employer, directly or indirectly." Tenn. Code
Ann. § 4-21-102(4). A "person" is defined as including "one (1) or more
individuals." By these terms, the definition does not require that the person or
individual be an employee of the employer.
The State falls within the THRA's definition of an employer. Judge Lanier
allegedly acted, directly or indirectly, as an agent of the State. Judge Lanier's
alleged actions against the plaintiff constitute quid pro quo sexual harassment.
In Carr, we held that an employer is strictly liable for its supervisor's quid pro quo
harassment. Carr, ___ S.W.2d at ___. Accordingly, Judge Lanier's actions, if
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proven, may be imputed to the State because the State empowered Judge
Lanier with the authority he allegedly abused in an attempt to gain sexual favors.
The State's argument that sovereign immunity insulates the State from
liability for Judge Lanier's alleged discriminatory acts is without merit. The THRA
explicitly provides that the State may be liable for employment-related
discrimination against an individual. Tenn. Code Ann. § 4-21-102(4) & 401. The
plaintiff's allegations, therefore, satisfy the legislative requirements for imposition
of State liability under the THRA.
The Court of Appeals' reversal of the trial court's decision is affirmed as
modified, and the case is remanded to the trial court for proceedings consistent
with this opinion. Costs of this appeal are taxed to the appellant, State of
Tennessee, for which execution may issue if necessary.
Janice M. Holder, Justice
CONCURRING:
Anderson, C.J.
Drowota and Reid, J.J.
Birch, J., Not Participating
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