United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2005 Decided February 3, 2006
No. 04-5058
JANET L. LUTKEWITTE,
APPELLANT
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02484)
Tracy L. Gonos argued the cause for appellant. With her on
the briefs was George M. Chuzi.
Heather Graham-Oliver, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
2
Before: TATEL and BROWN, Circuit Judges, and EDWARDS,*
Senior Circuit Judge.
Opinion for the Court filed Per Curiam.
Opinion concurring in the Judgment filed by Circuit Judge
BROWN.
Per Curiam: This cause was considered on the record from
the United States District Court for the District of Columbia, and
was briefed and argued by counsel. It is hereby Ordered and
Adjudged that the judgment of the District Court is affirmed.
________________________________
Throughout 1999, appellant, Ms. Janet Lutkewitte, who is
employed by the Federal Bureau of Investigation (“FBI”), was
sexually harassed by her supervisor, David Ehemann. During
this period, Ehemann engaged in repugnant and reprehensible
conduct by harassing Ms. Lutkewitte with unwelcome sexual
advances, including forced submission to his sexual demands.
Appellant filed suit in the District Court on October 17, 2000,
against both Ehemann and the Attorney General of the United
States in his official capacity, alleging quid pro quo sexual
harassment, hostile work environment, and retaliation in
violation of, inter alia, Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. (2000). Ms. Lutkewitte
settled with Ehemann on the eve of trial. The District Court
entered judgment for the Government on December 19, 2003,
following a jury verdict.
*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
3
During the course of the trial, Ms. Lutkewitte asked the
trial court to give the following “tangible employment action”
instruction to the jury:
If you find that Ehemann sexually harassed the plaintiff,
then you must find the FBI liable for that harassment if you
find that any of the following is true:
(1) Ehemann used his authority as plaintiff’s supervisor at
the FBI to compel her attendance at an inspection in
New York enabling him to take advantage of her; OR
(2) Ehemann’s words or conduct would have
communicated to a reasonable person in the Plaintiff’s
position that she would suffer negative job
consequences if she did not submit to his sexual
demands; OR
(3) Ehemann gave Plaintiff certain favorable job benefits
because she submitted to his sexual demands.
Joint Appendix (“J.A.”) 254-55 (footnotes omitted). The trial
judge, however, declined to instruct the jury to consider whether
Ehemann’s sexual harassment of Ms. Lutkewitte culminated in
a tangible employment action.
On a Special Verdict Form, the jury found that (1) appellant
had proven a hostile work environment, (2) the FBI had proven
that it exercised reasonable care to prevent any sexually
harassing behavior on the part of Ehemann, (3) the FBI had
proven that it exercised reasonable care to promptly correct any
sexually harassing behavior by Ehemann, and (4) the FBI had
proven that Ms. Lutkewitte unreasonably failed to take
advantage of the preventive and corrective opportunities
provided her, or that she otherwise unreasonably failed to avoid
harm. Id. at 325. The jury thus entered a verdict for appellee on
the claim of hostile work environment sexual harassment. Id.
4
The jury also entered a verdict for appellee on the claim of
retaliation. Id. at 326.
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775
(1998), the Supreme Court “delineate[d] two categories of
hostile work environment claims: (1) harassment that
‘culminates in a tangible employment action,’ for which
employers are strictly liable, and (2) harassment that takes place
in the absence of a tangible employment action, to which
employers may assert an affirmative defense.” Pa. State Police
v. Suders, 542 U.S. 129, 143 (2004) (quoting Ellerth, 524 U.S.
at 765, and citing Faragher, 524 U.S. at 807-08). In explaining
when an employer is subject to vicarious and strict liability to a
victimized employee for an actionable hostile environment
created by a supervisor, the Court offered the following
guidance:
At the outset, we can identify a class of cases where,
beyond question, more than the mere existence of the
employment relation aids in commission of the harassment:
when a supervisor takes a tangible employment action
against the subordinate. Every Federal Court of Appeals to
have considered the question has found vicarious liability
when a discriminatory act results in a tangible employment
action.
....
. . . 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.
....
5
When a supervisor makes a tangible employment
decision, there is assurance the injury could not have been
inflicted absent the agency relation. A tangible
employment action in most cases inflicts direct economic
harm. As a general proposition, only a supervisor, or other
person acting with the authority of the company, can cause
this sort of injury.
....
In order to accommodate the agency principles of
vicarious liability for harm caused by misuse of supervisory
authority, as well as Title VII’s equally basic policies of
encouraging forethought by employers and saving action by
objecting employees, we adopt the following holding in this
case and in Faragher v. Boca Raton. . . . An employer is
subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with
immediate (or successively higher) authority over the
employee. When no tangible employment action is taken,
a defending employer may raise an affirmative defense to
liability or damages. . . . The defense comprises two
necessary elements: (a) that the employer exercised
reasonable care to prevent and correct promptly any
sexually harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. . . . No affirmative
defense is available, however, when the supervisor’s
harassment culminates in a tangible employment action,
such as discharge, demotion, or undesirable reassignment.
Ellerth, 524 U.S. at 760-62, 764-65.
On appeal, appellant claims that the District Court
“committed reversible error when it failed to give the jury a
tangible employment action instruction permitting it to find that
6
the FBI was strictly liable for Ehemann’s sexual harassment of
Lutkewitte.” Br. for Appellant at 16. In advancing this claim,
Ms. Lutkewitte asserts that Faragher and Ellerth “compel the
conclusion that a ‘tangible employment action’ occurs when a
subordinate is coerced into submitting to a supervisor’s sexual
demands for fear of losing her job or otherwise being penalized
with respect to the terms and conditions of her employment.”
Id. at 17. On this reading of the case law, she contends that the
District Court was obliged to find, as a matter of law, that
“Ehemann’s sexual harassment culminated in a tangible
employment action thereby rendering the FBI strictly liable,” id.
at 18, or at least to submit the question to the jury, id. at 16-18.
Under this view, Ms. Lutkewitte must produce record evidence
that her job or significant employment benefits were conditioned
on her sexual submission. See Holly D. v. Cal. Tech., 339 F.3d
1158, 1174 (9th Cir. 2003); Jin v. Metro. Life Ins. Co., 310 F.3d
84, 98 (2d Cir. 2002). Without ruling on the validity of Ms.
Lutkewitte’s legal theory, we reject both of her contentions as
the record before us contains no such evidence.
We reject appellant’s first two proposed instructions out of
hand. Ehemann’s directive to appellant that she come to New
York where she may have been more vulnerable to his advances
was not a tangible employment action. While his order may
have conditioned appellant’s job on her attending the New York
conference, it did not condition either her job or benefits on
submission to Ehemann’s subsequent advances. As for
appellant’s claim that she feared losing her job if she did not
submit, there is insufficient evidence to justify considering her
submission itself a tangible employment action. Appellant
offered nothing to suggest that Ehemann implicitly or explicitly
conditioned her continued employment on her acquiescence to
his sexual overtures.
Appellant’s brief principally focuses on her contention that
her ability to receive job-related benefits was conditioned on her
7
submission to Ehemann’s demands. At trial, appellant
attempted to show both that she received job benefits and
advancements and that those benefits and advancements were
conditioned on her sexual submission to Ehemann. Specifically,
appellant’s brief contends that, “shortly after [appellant]
acquiesced to his advances, Ehemann approved and paid for
unlimited overtime work totaling approximately $23,000,
payments he had previously refused to authorize; he obtained a
brand new government car for her use[;] . . . . [and] during the
period when he was sexually imposing himself on her on a daily
basis, he took tangible steps to promote [appellant] by
expanding her staff and supervisory responsibilities.” Br. for
Appellant at 29-30. The record, however, is devoid of any
evidence to support the existence of a “tangible employment
action,” and nowhere indicates that any of the job benefits she
received were conditioned on her sexual submission to
Ehemann.
First, appellant’s assertion that her receipt of a “brand new”
car in 1999 was evidence of a tangible employment action is
specious. Ms. Lutkewitte already had a take-home car, Trial Tr.
at 89, (12/16/03), J.A. 99, so a new one created no significant
change in her ability to effectively perform her job duties or on
the conditions of her employment and, therefore, was not a
“tangible” benefit. See Ellerth, 524 U.S. at 761 (requiring
tangible employment actions “constitute a significant change in
employment status such as . . . a significant change in benefits”);
Roebuck v. Washington, 408 F.3d 790, 793 (D.C. Cir. 2005)
(requiring tangible employment actions have a “significant
effect” on a plaintiff’s employment status, work, or benefits). In
addition, appellant’s brief contends that Ehemann repeatedly
denied her rightful access to her original take-home vehicle, see
Br. for Appellant at 4, but nothing presented at trial confirms
this claim. Ms. Lutkewitte never asserted at trial that Ehemann
had previously improperly denied her a car. Indeed,
Government witness Edward Shubert, the assistant special agent
8
in charge of the administrative services division of the FBI at the
time, testified that take-home vehicles were assigned “based on
the needs of the FBI, in this case, the needs of the Washington
field office.” Trial Tr. at 107 (12/17/03), J.A. 146. Appellant
therefore presented no evidence remotely suggesting that
Ehemann’s approval of her access to a new car was conditioned
on her sexual acquiescence.
Appellant’s claim that Ehemann allegedly took “tangible
steps” to put her in a position to receive a promotion proves
nothing. For one thing, there is no evidence in the record to
indicate that appellant was ever promoted. See id. at 31, J.A. 68.
Furthermore, in the context of appellant’s claim, the two
relevant actions allegedly taken by Ehemann – his effort to
obtain a GS-14 position description for appellant and his
oversight of the augmentation of appellant’s staff – simply do
not rise to the level of “tangible employment actions” under
Faragher and Ellerth. Ms. Lutkewitte asserted, but never
submitted any admissible evidence to prove, that staff
augmentation was an important step toward promotion, and
never argued that the expansion of her staff led to reduced
workload or that increased supervisory authority alone was a
tangible benefit. Nothing here therefore indicates that
Ehemann’s behavior culminated in the actions condemned by
Faragher and Ellerth.
Finally, in her brief to this court, appellant claims that,
throughout the period Ehemann supervised [appellant], he
denied authorization for virtually all of the overtime she
worked to complete her assigned duties. This changed as
Ehemann began to impose himself sexually on [appellant]
and . . . starting at the end of 1998 Ehemann approved
virtually all of the overtime [appellant] claimed.
Br. for Appellant at 11 (emphasis omitted); see also Trial Tr. at
73 (12/15/03), J.A. 44 (appellant asserting that in the “last half
9
of 1998” she was granted increased access to overtime pay).
Both before the District Court and in her appellate brief,
however, Ms. Lutkewitte relies on the temporal proximity of her
increased overtime pay and her submission to Ehemann in
January 1999 to establish that Ehemann conditioned her pay on
her acquiescence. Trial Tr. at 59-60 (12/18/03), J.A. 211-12
(arguing that Ms. Lutkewitte demonstrated conditioning based
on Ehemann’s conveyance of employment benefits
“contemporaneously with or very shortly after” Ms.
Lutkewitte’s sexual acquiescence in January 1999); Br. for
Appellant at 29 (same). Because any alleged increased access
to overtime pay began before her submission to Ehemann’s
advances in January 1999, Ms. Lutkewitte failed to offer
adequate evidence of causation to warrant a tangible
employment action instruction on this claim.
The record thus offers nothing to support appellant’s
tangible employment action claim. It neither suggests that
appellant received benefits that qualify as tangible employment
actions, nor otherwise demonstrates that benefits were
conditioned on appellant’s sexual submission. There is no
evidence anywhere in the record to support appellant’s assertion
that Ehemann implicitly threatened her with a loss of job,
demotion, or other tangible employment action if she declined
to submit to his advances. Ehemann’s harassing conduct was
unspeakably offensive and repulsive, but the coercion that is
inherent in a supervisor-employee relationship, without more, is
not enough upon which to hold an employer strictly liable for a
supervisor’s sexual harassment. Ellerth, 524 U.S. at 760;
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986).
Because there is no evidence of a tangible employment
action, we agree with the District Court that no reasonable jury
could find that appellant’s receipt of job benefits was the result
of her sexual submission. We find no need, and indeed think it
improper, to address larger questions regarding the extent to
10
which Faragher and Ellerth are applicable in the “submission”
context. The Supreme Court has not addressed 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
conditioned upon her acquiescence, although the Second and
Ninth Circuits have addressed these issues. See Holly D., 339
F.3d at 1169 (finding that Faragher and Ellerth apply in the
submission context); Jin, 310 F.3d at 94 (same). But because all
of Ms. Lutkewitte’s claims fail based on factors this court has
already considered – either on the significance of the
employment action taken or on causation – and because the
government challenges her claims only on these grounds, we
need not decide the novel legal questions raised by Ms.
Lutkewitte’s requested instructions: whether benefits can
constitute tangible employment actions or whether submission
in the face of quid pro quo harassment itself constitutes a
tangible employment action. See Br. for Appellee at 20 (“At no
time has appellee argued that a tangible employment action has
to be adverse or that a threat has to be explicit. Rather, appellee
argues that there must be some evidence that the tangible
employment action is conditioned upon unwelcomed sexual
activity.”). This court should decide these important questions
only when the facts the plaintiff presents demand their
resolution.
The District Court did not issue an opinion in this case and
the parties did not squarely address these larger issues in their
briefs or in arguments to this court. We therefore believe that it
would be a mistake “to address far-reaching questions on which
we [might] disagree, when they are wholly unnecessary to the
disposition of the case.” PDK Labs., Inc. v. DEA, 362 F.3d 786,
809-10 (D.C. Cir. 2004) (Roberts, J., concurring). As Justice
Frankfurter once put it: “These are perplexing questions. Their
difficulty admonishes us to observe the wise limitations on our
function and to confine ourselves to deciding only what is
11
necessary to the disposition of the immediate case.” Whitehouse
v. Ill. Cent. R.R. Co., 349 U.S. 366, 372-73 (1955).
In sum, we hold that, on the record here, the District Court
did not err in declining to give the jury a tangible employment
action instruction or in refusing to grant appellant a judgment as
a matter of law on her claim of strict liability.
BROWN, Circuit Judge, concurring in the judgment: While
I concur in the decision to affirm the district court’s refusal to
give a requested jury instruction, I write separately to suggest a
legal—rather than a factual—justification for our judgment. The
legal question at the core of this case is a narrow one: whether
any of Janet Lutkewitte’s allegations, even if accepted as true,
qualifies as a “tangible employment action” under the frame-
work established by the Supreme Court in Faragher v. City of
Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742 (1998). Lutkewitte’s proposed instruc-
tion was consistent with the evidence presented at trial and the
legal standard applied by two other circuits; however, that legal
theory—while superficially appealing—seems analytically
dubious. For the reasons outlined below, I conclude the district
court properly refused the instruction.
I
A
At issue here is a difficult subcategory of sexual harassment
cases sometimes referred to as submission cases—that is, cases
in which the complaining employee submits to the sexual
advances of the supervisor. These cases pose unique problems
because the employee may have suffered no adverse employ-
ment consequences, and hence no economic harm. Lutkewitte
argued forcefully that an employer is strictly liable in submis-
sion cases for the supervisor’s sexual harassment of the em-
ployee if a reasonable person in the employee’s position would
have feared that rejecting the supervisor’s advances would have
led to retribution. Under her view, an employee’s submission or
acquiescence in such circumstances constitutes a tangible
employment action. See Holly D. v. Cal. Inst. of Tech., 339 F.3d
1158, 1167 (9th Cir. 2003) (stating that a tangible employment
action occurs when an employee complies with a supervisor’s
sexual demands in order to avoid a threatened adverse action);
Jin v. Metro. Life Ins. Co., 310 F.3d 84, 97 (2d Cir. 2002)
2
(stating that a tangible employment action occurs when a
supervisor uses his authority to impose on an employee the
added job requirement that she submit to sexual abuse in order
to retain her employment). The trial judge initially ex-
pressed skepticism in response to this argument, noting that a
tangible employment action usually inflicts direct economic
harm and requires an official act of the enterprise, documented
in official company records and subject to higher level review.
Apparently, though, he eventually accepted the basic premise of
Jin and Holly D., because in denying Lutkewitte’s motion for
judgment as a matter of law, he did not reject her legal theory.
Instead, he found she had presented no evidence that her
continued employment was conditioned on providing her
supervisor with sexual favors. Lutkewitte then requested a jury
instruction that reflected her view of the law, but the judge
rejected this proposed instruction, perhaps again finding
insufficient evidence, though not elaborating further on his
reasoning.
A party is entitled to an instruction on any legal theory that
has a basis in the law and the record. Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993); see also
Horton v. Buhrke, 926 F.2d 456, 460 (5th Cir. 1991). The
majority finds insufficient evidence that the supervisor made
sexual favors a condition of employment, and thus finds the
instruction inappropriate on that ground. This approach 1)
assumes the validity of the legal theory underlying the proposed
instruction and 2) sets the evidentiary bar extremely high.
Ordinarily, a victim of sexual harassment need not prove that
continued employment or benefits were expressly conditioned
or explicitly threatened based on the level of sexual complai-
sance. As Holly D. itself explained: “It is enough that the
individual making the unwelcome sexual advance was plaintiff’s
supervisor, and that a link to employment benefits could
[reasonably] be inferred under the circumstances.” Holly D., 339
3
F.3d at 1173 (quoting Ming W. Chin et al., Cal. Practice Guide
Employment Litig. ¶ 10:51 (2002)) (alteration in original).
Therefore, while I agree with the majority that we should not
address “far-reaching questions” that are “wholly unnecessary
to the disposition of the case,” Op. at 10 (quoting PDK Labs.,
Inc. v. DEA, 362 F.3d 786, 809-10 (D.C. Cir. 2004) (Roberts, J.,
concurring)), I believe Lutkewitte presented enough evidence to
meet this minimal threshold and support an instruction under her
theory of the law. Thus, the soundness of Lutkewitte’s view of
the law must be examined, as the proposed instruction would be
justified only if it is both legally and factually sufficient.
B
The sequence of events alleged by Lutkewitte is distressing;
her account was essentially uncontested at trial and needs to be
recounted here only briefly. Lutkewitte is employed as a
supervisory computer specialist for the Federal Bureau of
Investigation (FBI, or Bureau) and worked at the Bureau’s
Washington Field Office during the relevant times. From 1996
to 1999, David Ehemann supervised Lutkewitte—first as her
second-line supervisor and later as her direct supervisor. Starting
in March 1998, Ehemann began making romantic and sexual
overtures to Lutkewitte. He asked her out to dinner when they
attended out of town conferences, behaved flirtatiously, and told
her “don’t worry about getting your [promotion to GS-]13,
you’ll get your 13, and if you stick with me you’ll go higher.” In
January 1999, Ehemann ordered Lutkewitte to assist him during
an inspection in New York, where he pressured her into unde-
sired sexual intimacies to which she acquiesced because she
thought she would lose her job if she told him to stop. After the
New York trip, Ehemann’s pursuit of Lutkewitte included
kissing her hello and goodbye at work, following her, sending
her personal e-mails, and rubbing up against her when he
thought they were unobserved. She never told him to stop,
4
because she feared losing her job, but she did try to discourage
him and avoid him. Also during this time, an FBI internal
investigation concluded that Ehemann “has earned a perception
of dealing differently with women in his unit than with men,”
namely that “women under his command were allowed more
privileges and freedoms than men.”
Lutkewitte claims—although this point was strongly
contested at trial—she first became aware of the Bureau’s sexual
harassment policies in October 1999. She reported Ehemann’s
conduct, and the Bureau launched an immediate investigation.
Disciplinary measures were recommended, but Ehemann retired
before any of those actions (other than his immediate reassign-
ment) was taken. The investigative report acknowledged
Ehemann’s “conduct had the effect, if not the purpose, of
creating an inappropriate work environment” for Lutkewitte,
who “was placed in the untenable position of having to rebuff
his advances and risk retaliation (although the evidence does not
reflect that any had been explicitly threatened by Mr. Ehemann),
or to acquiesce to them, to the detriment of her personal well-
being.”
II
Lutkewitte brought suit against the FBI, alleging sexual
harassment in violation of Title VII of the Civil Rights Act of
1964. After a trial, the jury found Lutkewitte had proven she
was subjected to a hostile work environment, but also found
1) the FBI took reasonable care to prevent Ehemann’s sexually
harassing behavior, 2) the FBI exercised reasonable care to
promptly correct that behavior, and 3) Lutkewitte unreasonably
failed to take advantage of preventive or corrective opportuni-
ties, or “unreasonably failed to avoid harm otherwise.”
Lutkewitte claims the trial court erred by denying her
5
request for a jury instruction containing the following language:
If you find that Ehemann sexually harassed the plaintiff,
then you must find the FBI liable for that harassment if you
find that any of the following is true:
1) Ehemann used his authority as plaintiff’s supervisor at
the FBI to compel her attendance at an inspection in New
York enabling him to take advantage of her; OR
2) Ehemann’s words or conduct would have communicated
to a reasonable person in the [p]laintiff’s position that she
would suffer negative job consequences if she did not
submit to his sexual demands; OR
3) Ehemann gave [p]laintiff certain favorable job benefits
because she submitted to his sexual demands.
Lutkewitte proffered several examples of “favorable job bene-
fits” she allegedly received during the time in question. She
claims that in 1998, Ehemann began allowing her to receive
overtime pay in cash rather than in a mix of cash and compensa-
tory time off, as she had previously received. She claims that
after March 1998, Ehemann allowed her to use an FBI vehicle
as a take-home car, a privilege that she had not been granted
before that time, and that this car was upgraded to a new model
in 1999. Also in 1999, Ehemann allegedly authorized her to
replace the computer she used when working from her home. In
addition, Lutkewitte alleges that Ehemann offered to let her
“write up” a promotion to a GS-14 position for herself, but she
declined to do so. Nevertheless, he increased the staff that
reported to her, which was a prerequisite for such a promotion.
Lutkewitte’s testimony was ambiguous as to the specific dates
when some of these changes occurred, but she did state that
Ehemann “seemed to allow everything after New York.”
Giving a jury an instruction unsupported by any evidence is
“clearly error,” as an “instruction presupposes that there is some
6
evidence before the jury which they may think sufficient to
establish the facts hypothetically assumed in the opinion of the
court.” United States v. Breitling, 61 U.S. (20 How.) 252, 254-
55 (1858). Similarly, if a proposed instruction misstates the law,
the trial court should not give it to the jury and is not obliged “to
tinker with the flawed proposed instruction until it [is] legally
acceptable.” Rogers v. Ingersoll-Rand Co., 144 F.3d 841, 843
(D.C. Cir. 1998). Based on the evidence presented at trial, a jury
could have found that any or all of the three actions described in
the proposed instruction did actually occur. Regarding the first
prong of the instruction, Lutkewitte claimed Ehemann directly
ordered her to join him in New York. Regarding the second
prong of the instruction, she testified that she feared losing her
job or her benefits if she resisted his advances, and in light of
Ehemann’s alleged aggressive behavior, a jury could have found
Lutkewitte’s beliefs to be reasonable.1 Finally, regarding the
third prong of the instruction, she presented evidence that
Ehemann granted her various benefits during the period in
which she was being harassed and that he had previously
promised that she would “go higher” professionally if she stuck
with him. While some of the benefits were granted before the ill-
fated trip to New York in January 1999, Ehemann’s harassment
began in March 1998; Lutkewitte had thus already been submit-
ting to his lower-intensity harassment months before the New
York incident. The FBI itself concluded that Lutkewitte “was
placed in the untenable position” of choosing either to submit to
Ehemann’s demands or “to rebuff his advances and risk retalia-
tion”; the Bureau’s opinions have no legal effect here, but they
at least suggest that a jury could reasonably come to the same
conclusion.
1
Despite the language of the proposed instruction, the majority
does not address the reasonableness of Lutkewitte’s fears in light of
the overall circumstances, asserting instead that she lacked evidence
of “condition[ing].” Op. at 6.
7
Hence, Lutkewitte’s proposed instruction did have a basis
in the record, Joy, 999 F.2d at 556, which a jury could think
sufficient to establish the facts suggested by the instruction,
Breitling, 61 U.S. (20 How.) at 254-55. It is not this court’s role
to decide whether a jury ought to have believed Lutkewitte’s
version of events; no further discussion of the factual record is
required. This conclusion, however, leaves unanswered the
question of whether Lutkewitte’s proposed instruction misstated
the law. See Rogers, 144 F.3d at 843. If the events alleged by
Lutkewitte do not satisfy the legal standard for tangible employ-
ment actions under Faragher and Ellerth, then the district court
properly refused to give the proposed instruction.
III
Title VII of the Civil Rights Act of 1964 states that:
It shall be an unlawful employment practice for an em-
ployer . . . to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individ-
ual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
race, color, religion, sex, or national origin . . . .
42 U.S.C. § 2000e-2(a)(1). The term “employer” is defined to
include agents of the employer. Id. § 2000e(b). In 1986, the
Supreme Court endorsed guidelines previously issued by the
Equal Employment Opportunity Commission (EEOC) in which
“sexual harassment” was declared to be a form of sex discrimi-
nation prohibited by Title VII. Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986). The Court distinguished
between cases where sexually harassing conduct was “directly
linked to the grant or denial of an economic quid pro quo” and
those cases where the conduct created a “hostile environment”
without such an economic linkage. Id. While both types of cases
8
were declared to be actionable, the conduct in hostile environ-
ment claims “must be sufficiently severe or pervasive ‘to alter
the conditions of [the victim’s] employment and create an
abusive working environment.’” Id. at 67 (alteration in original)
(citation omitted). However, the Court concluded that employers
are not “always automatically liable for sexual harassment by
their supervisors,” although “absence of notice to an employer
does not necessarily insulate that employer from liability.” Id.
at 72. While not providing specific rules for an employer’s
vicarious liability, the Court did state that “Congress wanted
courts to look to agency principles for guidance in this area.” Id.
In the years after Meritor, the Courts of Appeals—including
this court—developed a rule that quid pro quo harassment by a
supervisor would result in strict liability for the employer. See
Gary v. Long, 59 F.3d 1391, 1395-96 (D.C. Cir. 1995). We held
that for quid pro quo liability to be imposed on the employer,
“the supervisor must have wielded the authority entrusted to him
to subject the victim to adverse job consequences as a result of
her refusal to submit to unwelcome sexual advances.” Id. at
1396. “To hold otherwise would be to impose liability on the
employer without evidence that the supervisor had acted as its
agent”; therefore, we concluded that if the supervisor’s “threats
were not carried out,” a plaintiff could not “make out a claim of
quid pro quo sexual harassment.” Id. On the other hand, “a
supervisor’s mere threat or promise of job-related harm or
benefits in exchange for sexual favors . . . may create or
contribute to a hostile work environment.” Id. Under traditional
agency principles, an employer would not be liable for such
conduct if it was outside the scope of the supervisor’s employ-
ment, but one exception to this rule was that an employer could
be liable if the agent “was aided in accomplishing the tort by the
existence of the agency relation.” Id. at 1397 (emphasis and
citation omitted). In a sense, the existence of the agency
relationship always aids the supervisor’s harassment, because
9
“his responsibilities provide proximity to, and regular contact
with, the victim.” Id. We stated that an employer could avoid
liability for hostile work environment claims if it was “able to
establish that it had adopted policies and implemented measures
such that the victimized employee either knew or should have
known that the employer did not tolerate such conduct and that
she could report it to the employer without fear of adverse
consequences.” Id. at 1398.
In 1998, however, the Supreme Court provided a new
framework for analyzing vicarious employer liability in sexual
harassment cases. See Faragher v. City of Boca Raton, 524 U.S.
775 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).
Citing Gary, the Court endorsed vicarious liability for the
employer when the supervisor is aided in accomplishing the
harassment by the existence of the agency relationship. Ellerth,
524 U.S. at 760. However, the Court recognized a tension
between this principle and Meritor’s holding that an employer
is not always automatically liable for harassment by its supervi-
sors: “[I]f the ‘aid’ may be the unspoken suggestion of retalia-
tion by misuse of supervisory authority, the risk of automatic
liability is high.” Faragher, 524 U.S. at 804. To effectuate the
limitation of liability recognized in Meritor, the court considered
“two basic alternatives, one being to require proof of some
affirmative invocation of that authority by the harassing
supervisor, the other to recognize an affirmative defense to
liability in some circumstances, even when a supervisor had
created the actionable environment.” Id. Fearing that the first
option would lead to too many judgment calls and difficult
issues of proof, the Court chose to establish an affirmative
defense that could protect employers from liability. Id. at 805.
Thus, the Court held:
An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by
10
a supervisor with immediate (or successively higher)
authority over the employee. When no tangible employment
action is taken, a defending employer may raise an affirma-
tive defense to liability or damages, subject to proof by a
preponderance of the evidence, see Fed. Rule Civ. Proc.
8(c). The defense comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent
and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.
Id. at 807; Ellerth, 524 U.S. at 765.
“No affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassign-
ment.” Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765.
“[W]hen a supervisor takes a tangible employment action
against the subordinate,” then “beyond question, more than the
mere existence of the employment relation aids in commission
of the harassment.” Ellerth, 524 U.S. at 760. “A tangible
employment action constitutes a significant change in employ-
ment status, such as hiring, firing, failing to promote, reassign-
ment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Id. at 761. In such
situations, the Court explained, “there is assurance the injury
could not have been inflicted absent the agency relation,” and in
most cases, “direct economic harm” is inflicted on the em-
ployee. Id. at 761-62. “As a general proposition, only a supervi-
sor, or other person acting with the authority of the company,
can cause this sort of injury,” as “[t]angible employment actions
are the means by which the supervisor brings the official power
of the enterprise to bear on subordinates.” Id. at 762. Moreover,
“[a] tangible employment decision requires an official act of the
11
enterprise, a company act. The decision in most cases is
documented in official company records, and may be subject to
review by higher level supervisors.” Id. “For these reasons, a
tangible employment action taken by the supervisor becomes for
Title VII purposes the act of the employer. . . . In that instance,
it would be implausible to interpret agency principles to allow
an employer to escape liability. . . .” Id. at 762-63.
The Court also clarified the proper use of the terms “quid
pro quo” and “hostile work environment.” “[I]n the wake of
Meritor, [the terms] acquired their own significance,” because
courts acted as if the “standard of employer responsibility turned
on which type of harassment occurred.” Id. at 752-53. Ellerth
clarified, however, that those terms are only relevant “when
there is a threshold question whether a plaintiff can prove
discrimination in violation of Title VII.” Id. at 753. “The terms
. . . are helpful, perhaps, in making a rough demarcation between
cases in which threats are carried out and those where they are
not or are absent altogether, but beyond this they are of limited
utility.” Id. at 751. In other words, “[t]he principle significance
of the distinction is to instruct that Title VII is violated by either
explicit or constructive alterations in the terms or conditions of
employment and to explain the latter must be severe or perva-
sive.” Id. at 752. In a quid pro quo case, where the “plaintiff
proves that a tangible employment action resulted from a refusal
to submit to a supervisor’s sexual demands, . . . the employment
decision itself constitutes a change in the terms and conditions
of employment that is actionable under Title VII.” Id. at 753-54.
In hostile work environment cases—including cases where a
supervisor’s threats are unfulfilled—the plaintiff must show
“severe or pervasive conduct” for the harassment to be action-
able under Title VII. Id. at 754. Once actionable sexual harass-
ment of either type has been shown, however, the old labels are
no longer useful: the new affirmative defense framework, “and
not the categories quid pro quo and hostile work environment,
12
will be controlling on the issue of vicarious liability.” Id.
The facts of Ellerth are also informative. The plaintiff in
Ellerth was subjected to verbal sexual harassment, and her
supervisor threatened that he “could make [her] life very hard or
very easy” at the company, depending on whether she
“loosen[ed] up.” Id. at 748 (internal quotation marks omitted).
Ellerth alleged that her supervisor’s comments amounted to
threats to her tangible job benefits, although the threats went
unfulfilled (because Ellerth eventually resigned). Id. at 747-48.
The Supreme Court stated that “Ellerth ha[d] not alleged she
suffered a tangible employment action” at the hands of her
supervisor and remanded the case for the district court to
determine whether the employer could establish the affirmative
defense. Id. at 766.
IV
Despite the Supreme Court’s attempt in Faragher and
Ellerth to establish a framework that would clarify and unify
sexual harassment law, much uncertainty remains regarding the
definition of a “tangible employment action,” a phrase used only
once before those decisions.2 One question still unanswered after
those pathmarking cases is whether a tangible employment
action must be “adverse.” Many of the examples given in
Ellerth’s definition of the phrase are adverse actions: “firing”
and “failing to promote,” id. at 761, and “discharge, demotion,
or undesirable reassignment,” id. at 765. Others, however, are
more ambiguous: “hiring,” “reassignment with significantly
different responsibilities,” and “a decision causing a significant
2
Before June 26, 1998 (the date on which Faragher and Ellerth
were decided), only one opinion, an unreported district court decision,
used the precise term. See Henriquez v. Times Herald Record, No. 97
Civ. 6176, 1997 WL 732444, at *6 (S.D.N.Y. Nov. 25, 1997).
13
change in benefits.” Id. at 761. The Court also stated that “in
most cases” a tangible employment action would “inflict[] direct
economic harm” (as opposed to other types of harm), and
emphasized that only a superior “can cause this sort of injury.”
Id. at 762 (emphasis added). The Court stated that the supervisor
is always aided by the agency relationship when he “takes a
tangible employment action against a subordinate.” Id. at 762-
63 (emphasis added). When the Court stated that it would
“import” the concept of a tangible employment action from
lower court decisions (albeit “[w]ithout endorsing the specific
results of those decisions”), it cited opinions that used terms
such as “materially adverse change” and “materially adverse
employment action” drawn from other areas of
antidiscrimination law. Id. at 761.
We have since stated that “in defining ‘tangible employ-
ment action,’ the Court could hardly have been more clear that
it is not ‘the fact of the official action,’ . . . but its effect upon
the plaintiff that matters.” Roebuck v. Washington, 408 F.3d
790, 793 (D.C. Cir. 2005). To qualify as a tangible employment
action, an official act must have a “significant effect” on the
plaintiff’s employment status, work, or benefits. Id. As the
plaintiff in Roebuck refused her supervisor’s advances, id. at
791-92, we did not confront the question of how the
Faragher/Ellerth standard would apply in submission cases.
However, we compared the term “tangible employment action”
to another concept present in Title VII case law, that of a
“materially adverse action.”3 Id. at 794 & n.*. Although we did
not decide that the two concepts were identical—stating that we
had “no reason in this case to doubt” that they were—we did
3
Roebuck refers to the term “materially adverse action,” though
assorted variants of the phrase have been used in the Title VII context.
See, e.g., Brown v. Brody, 199 F.3d 446, 452-53 (D.C. Cir. 1999)
(using “adverse employment action” and “adverse personnel action”).
14
draw on the analogy for the proposition that a sexual harassment
plaintiff must allege that the tangible employment action has
made her somehow “worse off.” Id. We stated that an em-
ployee’s lateral transfer could qualify as a tangible employment
action if it “entailed ‘materially adverse consequences affecting
the terms, conditions, or privileges of her employment.’” Id.
(quoting Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)).
Similarly, our cases have frequently referred to the “tangi-
ble employment action” concept in the context of discussing
adverse employment actions. See, e.g., Russell v. Principi, 257
F.3d 815, 818 (D.C. Cir. 2001); Brown, 199 F.3d at 456-57. We
have even announced that “‘reassignment with significantly
different responsibilities, or . . . a significant change in benefits’
generally indicates an adverse action.” Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002) (alteration in original)
(emphasis added) (quoting Ellerth, 524 U.S. at 761). However,
we have never chosen to establish a firm rule regarding the
relationship between the two concepts. Our sister circuits have
taken a wide variety of approaches. Some courts have found that
the two concepts are not identical. See, e.g., Hillig v. Rumsfeld,
381 F.3d 1028, 1031-33 (10th Cir. 2004); Ray v. Henderson, 217
F.3d 1234, 1242 n.5 (9th Cir. 2000). Others have treated them,
explicitly or implicitly, as interchangeable. See, e.g., Herrnreiter
v. Chi. Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002); Davis v.
Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001);
Bowman v. Shawnee State Univ., 220 F.3d 456, 461 n.5 (6th Cir.
2000). At least one has chosen, as we thus far have, not to
resolve the issue. See Watts v. Kroger Co., 170 F.3d 505, 510
n.4 (5th Cir. 1999).4
4
In subsequent unpublished cases, however, the Fifth Circuit
appears to have merged the two concepts. See, e.g., Donaldson v.
Burlington Indus., No. 03-51362, 2004 WL 1933603, at *2 (5th Cir.
Aug. 31, 2004) (stating that “to succeed on a quid pro quo Title VII
15
In light of this case law, particularly Ellerth and Roebuck,
a convincing case can be made that a tangible employment
action must be adverse. Although two other circuits have
explicitly adopted an opposite view—in cases I shall address
below—the degree to which the concept is intertwined with the
emphasis on “adverse” actions elsewhere in Title VII jurispru-
dence strongly suggests this conclusion.5 We are obliged to
follow the Supreme Court’s determinations on this issue, but
where its guidance is less than clear, we should tread carefully.
The Supreme Court and lower courts frequently treat tangible
employment actions and adverse employment actions as being
closely related, if not interchangeable. Thus, caution dictates
that a definition of tangible employment action should include
an element of adversity. See Newton v. Cadwell Labs., 156 F.3d
880, 883 (8th Cir. 1998) (stating that “the absence of a detrimen-
tal employment action allows [the employer] to present an
affirmative defense” in a sexual harassment suit). This conclu-
sion means only that the employer is not strictly liable for a
supervisor’s harassing conduct in a case involving the exchange
of sexual favors for employment benefits. The employer can
therefore attempt to defend itself by showing it had reasonable
measures in place to prevent such harassment but the employee
sexual harassment claim, a plaintiff must show that she suffered an
adverse ‘tangible employment action’”) (footnote omitted).
5
In addition to the Second and Ninth Circuit cases discussed
below, the Fourth Circuit has implied that a tangible employment
action need not be adverse, although that court has not explicitly
confronted the question. See Matvia v. Bald Head Island Mgmt., Inc.,
259 F.3d 261, 267-68 (4th Cir. 2001) (stating that “mundane, non-
adverse action[s]” are not tangible employment actions, but also
suggesting in dicta that this conclusion “does not mean that the
affirmative defense is available when supervisors guilty of sexual
harassment do bestow benefits in exchange for an employee’s
silence”); Brown v. Perry, 184 F.3d 388, 395 (4th Cir. 1999).
16
failed to take advantage of those options for avoiding harm.
This approach is at odds with the stance adopted by the
EEOC. Yet while guidelines issued by the EEOC “constitute a
body of experience and informed judgment to which courts and
litigants may properly resort for guidance,” they are not binding.
Meritor, 477 U.S. at 65 (internal quotation marks omitted). The
relevant guidelines issued by the EEOC after Faragher and
Ellerth state:
If a supervisor undertakes or recommends a tangible job
action based on a subordinate’s response to unwelcome
sexual demands, the employer is liable and cannot raise the
affirmative defense. The result is the same whether the
employee rejects the demands and is subjected to an
adverse tangible employment action or submits to the
demands and consequently obtains a tangible job benefit.
Such harassment previously would have been characterized
as “quid pro quo.” It would be a perverse result if the
employer is foreclosed from raising the affirmative defense
if its supervisor denies a tangible job benefit based on an
employee’s rejection of unwelcome sexual demands, but
can raise the defense if its supervisor grants a tangible job
benefit based on submission to such demands. The Com-
mission rejects such an analysis. In both those situations the
supervisor undertakes a tangible employment action on a
discriminatory basis. The Supreme Court stated that there
must be a significant change in employment status; it did
not require that the change be adverse in order to qualify as
tangible.
EEOC Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors § IV(B), 1999 WL
33305874, at *5 (June 18, 1999) (footnote omitted). Contrary to
17
the Commission’s belief, such a result would not be “perverse.”6
As I discuss below, the unavailability of the affirmative defense
in cases where a tangible employment action has taken place is
premised largely on the notice (constructive or otherwise) that
such an action gives to the employer—notice that the delegated
authority is being used to discriminate against an employee.7
When an employee is given a benefit, even a benefit equal in
magnitude to the actions listed in Ellerth, the employer has little
reason to suspect that the recipient of the benefit has been
discriminated against, as Title VII prohibits. See 42 U.S.C.
§ 2000e-2(a)(1) (“It shall be an unlawful employment practice
for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex . . . .”)
(emphasis added). Thus, only adverse actions can truly fill the
admonitory role for which the Court created the concept of
tangible employment actions.
When a benefit is given for discriminatory reasons, other
employees may be unhappy about being denied that same
benefit (and may therefore be able to file their own complaints),
6
The EEOC relied on a pre-Faragher/Ellerth case to support its
statement that the affirmative defense is unavailable in submission
cases. Id. at *5 & n.36 (citing Nichols v. Frank, 42 F.3d 503, 512-13
(9th Cir. 1994)). For reasons discussed below, infra n.9, this reliance
was misplaced.
7
This reasoning is consistent with the Meritor Court’s statement
that “absence of notice to an employer does not necessarily insulate
that employer from liability.” 477 U.S. at 72. First, the Meritor Court
was referring only to actual notice, not the constructive notice imputed
to employers when a tangible employment action occurs. Second, the
absence of a tangible employment action does not “necessarily
insulate” an employer from liability, as the employer will still be liable
if it is not able to prove the elements of the affirmative defense.
18
but the employment action itself has not injured the harassment
victim. The victim has been subjected to harassment, and the
employer is still potentially liable for the supervisor’s actions.
The absence of an adverse tangible employment action only
means that the employer retains the opportunity to prove the
elements of the affirmative defense. This result sensibly allows
the jury to determine whether it was the employer’s negligence
which caused the employee to be victimized and whether any
employment benefits flowed from consensual arrange-
ments—paramour preferences—or from true duress.
V
A
Such an approach is consistent with the Supreme Court’s
use of the adjective “tangible.” When non-adverse actions are
taken, an employer has less reason to suspect that its authority
is being used to perpetrate harassment, and thus these actions are
less “tangible.” This concern—that an employer should only be
strictly liable when it ought to be on notice that the authority it
has delegated is potentially being misused—was emphasized by
the Court in a post-Faragher/Ellerth case that shed further light
on why an employment action must be “tangible” to prevent an
employer from asserting the affirmative defense. In Pennsylva-
nia State Police v. Suders, 542 U.S. 129 (2004), the Court held
that a constructive discharge, in which the employee is driven to
resign because of harassing conduct, involves both an act of the
employee and (possibly) official action:
But when an official act does not underlie the constructive
discharge, the Ellerth and Faragher analysis, we here hold,
calls for extension of the affirmative defense to the em-
ployer. As those leading decisions indicate, official direc-
tions and declarations are the acts most likely to be brought
19
home to the employer, the measures over which the em-
ployer can exercise greatest control. Absent “an official act
of the enterprise,” as the last straw, the employer ordinarily
would have no particular reason to suspect that a resigna-
tion is not the typical kind daily occurring in the work
force. And as Ellerth and Faragher further point out, an
official act reflected in company records—a demotion or a
reduction in compensation, for example—shows “beyond
question” that the supervisor has used his managerial or
controlling position to the employee’s disadvantage. Absent
such an official act, the extent to which the supervisor’s
misconduct has been aided by the agency relation . . . is less
certain. That uncertainty . . . justifies affording the em-
ployer the chance to establish, through the Ellerth/Faragher
affirmative defense, that it should not be held vicariously
liable.
Id. at 148-49 (citations omitted). After Suders, then, the ratio-
nale behind the Faragher/Ellerth framework is clear: employers
may be held vicariously liable for harassment by supervisors,
even when the employer did not know about—much less
approve of—the harassing behavior. To justify this imposition
of liability, the employer is allowed to assert an affirmative
defense by showing, inter alia, that it acted reasonably to
prevent or correct the behavior, despite its imperfect knowledge.
When a tangible employment action has occurred, however, the
employer has constructive notice that its authority is being
used—and potentially misused. If an employee is fired or
demoted, for example, the employer still may not know whether
harassment motivated the action, but the Court determined that
it is fair to place upon the employer a duty to inquire, to take
responsibility for the action, and to assure itself that no discrimi-
20
nation was involved.8 An employer may choose not to make this
investigation, but it does so at its own risk, as it will be held
strictly liable for the misuse of its delegated authority in
performing tangible employment actions.
Hence, whether an employment action is “tangible” must be
determined from the perspective of the employer, as the
tangibility—that is, the constructive notice—is what justifies
imposing strict liability. If an action is not tangible from the
employer’s point of view, the employer has no reason to suspect
that its authority is at risk of being misused; it has not, in other
words, been given a “heads-up” that it should investigate the
supervisor’s behavior. In a constructive discharge case, such as
Suders, no tangible employment action takes place when an
employee is harassed into quitting. The harassment is certainly
tangible from the employee’s point of view; if it were not so, she
would not resign. Even so, the circumstances do not justify
imposing strict liability, as the employer’s authority was not
used to perform any action that was tangible from the em-
ployer’s point of view. The employer may well be liable for the
harassment that led to the resignation, but only if it fails to prove
that it acted reasonably to prevent or correct harm and that the
employee unreasonably failed to avoid harm. To hold otherwise
would undermine the Faragher/Ellerth Court’s goals in estab-
lishing the affirmative defense: avoiding automatic employer
liability (consistent with Meritor) without the danger of frequent
judgment calls and difficult issues of proof. Faragher, 524 U.S.
at 804-05.
B
8
For example, some employers may require exit interviews when
employees leave; others may require demotions to be justified in
writing, as well as being consistent with prior evaluations.
21
Before Suders provided this insight, however, two circuits
took a view incompatible with the one described above. These
circuits not only endorsed the EEOC view that a tangible
employment action did not have to be adverse but essentially
reversed the perspective from which tangibility is determined.
The Second Circuit took its first steps toward this approach in
the years before Faragher and Ellerth laid out the current
framework. In Karibian v. Columbia University, 14 F.3d 773,
778 (2d Cir. 1994), a submission case similar to the one we
address today, that court held that “nothing in the language of
Title VII or the EEOC Guidelines . . . support[s] . . . a require-
ment” that “evidence of actual, rather than threatened, economic
loss” must be presented “in order to state a valid claim of quid
pro quo sexual harassment.” The court reasoned that “evidence
of economic harm will not be available to support the claim of
the employee who submits to the supervisor’s demands,” but
“[t]he supervisor’s conduct is equally unlawful under Title VII
whether the employee submits or not.” Id. If evidence of harm
would be required, “only the employee who successfully
resisted the threat of sexual blackmail could state a quid pro quo
claim”; hence, the court chose not to “read Title VII to punish
the victims of sexual harassment who surrender to unwelcome
sexual encounters. Such a rule would only encourage harassers
to increase their persistence.” Id. Instead, “[t]he focus should be
on the prohibited conduct, not the victim’s reaction.” Id. at 779.
The Karibian court’s reasoning is incompatible with the
current affirmative defense-driven framework. While that court
correctly noted that harassing conduct can violate Title VII
regardless of the victim’s submission or refusal, that insight has
no bearing on whether the employer should be allowed to
present the affirmative defense. An employer can be held liable
for harassing conduct by a supervisor regardless of whether the
victim submits or refuses, regardless of whether any official act
is taken or not, and regardless of whether any such official
22
action is adverse or not. In any of those cases, the employer may
be vicariously liable, but in some of those situations the em-
ployer would be strictly liable, while in others it would have the
chance to prove an affirmative defense. Karibian’s reasoning is
no longer useful because it presupposes that whether a harass-
ment claim is labeled as “hostile work environment” or “quid
pro quo” determines whether an employer is strictly liable.
Faragher and Ellerth made clear that those categorical labels no
longer justify vicarious liability by themselves; the labels are
only useful during the court’s initial determination of whether
the plaintiff has stated an actionable claim of supervisory
harassment: “Title VII is violated by either explicit or construc-
tive alterations in the terms or conditions of
employment”—either quid pro quo or hostile work environment
claims, under the old framework—but allegations of “the latter
must be severe or pervasive” to state an actionable harassment
claim. Ellerth, 524 U.S. at 752. Regardless of the nature of the
underlying claim of harassment, strict liability under the new
analytical regime is only imputed when the supervisor’s
harassment culminates in a tangible employment action taken
against the victim; that is, the affirmative defense is unavailable
only when the employer’s authority has been used in such a way
as to give constructive notice that harassment (of either variety)
has occurred. Thus, alleging quid pro quo harassment is no
longer the standard for strict liability to attach. While the
situation that concerned the Karibian court—harassment
followed by submission—is still problematic, and still action-
able, it arguably should be analyzed differently under the
Faragher/Ellerth framework in order to determine how the
affirmative defense applies.
Yet, in Jin v. Metropolitan Life Insurance Co., 310 F.3d 84,
95 (2d Cir. 2002), the Second Circuit preserved the Karibian
reasoning even after Faragher and Ellerth had restructured
sexual harassment law. In Jin, the plaintiff presented evidence
23
that she submitted to her supervisor’s sexual demands after he
“explicitly threatened to fire her if she did not submit, and then
allowed her to keep her job after she submitted.” Id. at 94. The
court found that a tangible employment action occurred when
the supervisor, Morabito, “used his authority to impose on [Jin]
the added job requirement that she submit to weekly sexual
abuse in order to retain her employment.” Id. According to the
court, agency principles supported this finding, as the supervi-
sor’s “empowerment by MetLife as an agent who could make
economic decisions affecting employees under his control . . .
enabled him to force Jin to submit to his weekly sexual abuse.”
Id. The court decided that “[d]espite the differences in terminol-
ogy [after Faragher and Ellerth], Karibian’s essential holding
that an employer is liable in a submission case is sound even
under the Supreme Court’s new liability analysis.”9 Id. at 96.
The Karibian analysis was shoehorned into the new framework
by the proclamation that “[w]hen a supervisor ‘make[s] deci-
9
The Jin court argued:
[T]he Court in Faragher supported this conclusion by noting
the “soundness of the results” in and the “continuing vitality”
of cases such as Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994)
(holding employer vicariously liable where victim submitted
to supervisor’s requests for oral sex out of fear that she would
lose her job if she refused).
Jin, 310 F.3d at 96 n.7 (quoting Faragher, 524 U.S. at 791).
However, Jin’s invocation of Faragher is inapposite. The Faragher
Court was only discussing the situations in which vicarious liability
for supervisor harassment had been imputed to employers—not the
circumstances when the new affirmative defense would be
unavailable. The Faragher Court had not even established the
affirmative defense at this point in its analysis; it thus quite clearly did
not cite Nichols as an example of a situation where an employer could
not assert the defense.
24
sions affecting the terms and conditions of [plaintiff’s] employ-
ment based upon her submission to his sexual advances,’ he uses
his authority to effect, as the definition [of tangible employment
action] states, ‘a significant change in employment status.’” Id.
(first three alterations in original) (citations omitted). Although
the employer argued that, as in Ellerth, no tangible employment
action occurred because the supervisor’s threats were never
carried out, the court distinguished Ellerth on the basis that
“Ellerth, unlike Jin, was able to resist her supervisor’s ad-
vances.” Id. Jin, on the other hand, “was required to submit to
sexual acts and . . . Morabito used that submission as a basis for
granting her a job benefit (her continued employment).” Id. at
97. The court found this situation to be “substantially different
from the type of unfulfilled threat alleged in Ellerth, where no
job benefit was granted or denied based on the plaintiff’s
acceptance or rejection of her supervisor’s advances.” Id.10 The
court continued:
[W]hen a victim is coerced into submitting to a supervisor’s
sexual mistreatment, the threatened detrimental economic
tangible employment action may not take place. But that
does not mean that the use of the submission as the basis for
other job decisions does not also constitute tangible em-
ployment action. Because Faragher and Ellerth support our
earlier holding in Karibian that economic harm is not
required to hold an employer liable in a submission case,
we see no persuasive reason to abandon our prior judgment
on that issue.
10
I find this assertion to be somewhat inconsistent with the Jin
court’s reasoning. While Ellerth was not explicitly threatened with the
loss of her job if she did not submit to sexual demands, she received
the same “benefit” for tolerating the harassment that Jin did—she
retained her job (until she quit). Ellerth, 524 U.S. at 748.
25
Id. at 98 (footnote omitted). The Jin court thus failed to recog-
nize the changes prefigured by Faragher and Ellerth. Karibian
found that “economic harm” was not necessary to state a claim
of quid pro quo harassment, 14 F.3d at 778, but although such
a claim brought with it strict liability in the old regime, such
analysis is now only the first step. Regardless of which
label—hostile work environment or quid pro quo—would
formerly have been used, the plaintiff must now simply show an
alteration in the terms of her employment in order to state an
actionable claim of sexual harassment. Perhaps Karibian’s rule
may still be useful this far in the analysis, as it clarifies that the
harassment itself need not cause economic harm. The plaintiff,
however, must demonstrate more than quid pro quo harassment
for strict liability to attach: she must show a tangible employ-
ment action. This new requirement was not contemplated in the
Karibian analysis, which dealt only with actionable conduct, not
an affirmative defense.11 Hence, despite the Jin court’s claim
that Faragher and Ellerth supported the Karibian decision,
Karibian did not truly provide a basis for Jin.
The Jin court’s failure to acknowledge the new role of a
tangible employment action becomes clear in its next paragraph:
Finally, MetLife relies on a statement in Ellerth that a
“tangible employment decision requires an official act of
the enterprise, a company act.” But, assuming Jin’s allega-
tions to be true, Morabito’s use of his supervisory authority
to require Jin’s submission was, for Title VII purposes, the
11
As noted above, a close reading of Faragher and Ellerth
supports the view that a tangible employment action must be not only
tangible but also adverse. Karibian is consistent with this rule when
properly viewed as addressing only whether a claim of quid pro quo
harassment has been stated—a determination with far fewer
consequences than it used to have.
26
act of the employer. This is because Morabito brought “the
official power of the enterprise to bear” on Jin by explictly
threatening to fire her if she did not submit and then
allowing her to retain her job based on her submission. And
though a tangible employment action “in most cases is
documented in official company records, and may be
subject to review by higher level supervisors,” the Supreme
Court did not require such conditions in all cases. Indeed,
it would be difficult to imagine either documentation or
higher level review in a submission case.
Jin, 310 F.3d at 98 (citations omitted). By so holding, the
Second Circuit removed the requirement of tangibility from the
definition of a tangible employment action. As Suders later
clarified, a tangible employment action is an act “likely to be
brought home to the employer” in the sense that the employer is
on notice that its authority is being exercised and is thus placed
under a duty to ensure that the act is nothing but “the typical
kind daily occurring in the work force,” rather than the culmina-
tion of harassment. 542 U.S. at 148. In Jin, the supervisor did
not commit any act that should have given his employer notice
that he was using (and therefore potentially abusing) the power
delegated to him. If the supervisor had actually used his author-
ity, rather than only threatened to use it, the company could have
been expected to ensure that the authority had not been misused.
Based on the alleged facts, however, no basis existed for holding
the company strictly liable for the supervisor’s conduct. Of
course, upon a showing of such severe harassment, the company
would be presumptively liable under Faragher and Ellerth, but
in the absence of an act that was tangible from its own point of
view, the company should have been given a chance to prove
that it had not been negligent and that the plaintiff had been.
The Ninth Circuit has followed the Second Circuit’s
approach. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158 (9th
27
Cir. 2003). In Holly D., the plaintiff claimed that her supervisor
implicitly threatened to fire her if she did not submit to his
sexual demands. Id. at 1163-64. The court held that when “in
order to avoid the threatened action, the employee complies with
the supervisor’s demands,” a tangible employment action
occurs. Id. at 1167.12
In such cases, unlike in Ellerth, the threat does not simply
remain unfulfilled or inchoate, but rather results in a
concrete consequence. The supervisor accomplishes the
objective of the threat—the coercion of the sexual act—by
bringing to bear the authority to make critical employment
determinations on behalf of his employer.
Id. at 1168-69. “Thus, the participation in unwanted sexual acts
becomes a condition of the employee’s employment—a critical
condition that effects a substantial change in the terms of that
employment.” Id. at 1169. While this reasoning is logical, the
Holly D. court misunderstood its significance. As Faragher and
Ellerth made clear, “Title VII is violated by either explicit or
constructive alterations in the terms or conditions of employ-
ment [but] the latter must be severe or pervasive” to qualify as
a valid claim. Ellerth, 524 U.S. at 752. Thus, when “participa-
tion in unwanted sexual acts becomes a condition of the em-
ployee’s employment,” Holly D., 339 F.3d at 1169, Title VII is
violated. Yet this violation itself only suggests that the employer
may be liable—under Faragher and Ellerth, the employer’s
opportunity to avoid strict liability and assert the affirmative
defense depends on another issue, the presence of a tangible
employment action. The Ninth Circuit, however, conflated the
two steps: “The employer may be held vicariously liable for the
12
Though agreeing with the plaintiff’s legal theory, the court also
found that Holly D. had not presented sufficient evidence in support
of her allegations to avoid summary judgment. Id. at 1176.
28
supervisor’s unlawful conduct and may not take advantage of
the Faragher/Ellerth defense.” Id. While the first half of that
sentence is accurate, the second half is not a necessary corollary.
The Ninth Circuit’s reasoning fails for the same reason as
does the Second Circuit’s: it relies on a pre-Faragher/Ellerth
case that allowed a claim of quid pro quo harassment, with the
then-attendant strict liability, “when the employee’s continued
employment was conditioned on her participation in sexual
acts.” Id. (citing Nichols v. Frank, 42 F.3d 503, 513-14 (9th Cir.
1994)). The Holly D. court implied that Faragher and Ellerth
endorsed the reasoning in Nichols, although as noted above,
supra n.9, the Faragher Court did nothing more than note the
“continuing validity” of Nichols and other cases’ holdings that
employers could be liable in certain situations. See Faragher,
524 U.S. at 791. At that point in the Faragher decision, the
Court had only examined the bases for employer liability; it had
not yet formulated the affirmative defense, let alone specified
when it would or would not be available. In other words,
Nichols’s continued validity only pertains to potential employer
liability, not strict liability. This distinction necessarily follows
from the reduced role played by the quid pro quo label after
Faragher and Ellerth: while affixing that label led to strict
liability in Nichols, it now only serves to demonstrate that an
actionable claim of harassment has been stated.
While the Ninth Circuit acknowledged that a plaintiff must
demonstrate a tangible employment action in order for strict
liability to attach, it eviscerated the “tangibility” requirement in
the same way as did the Second Circuit. The court stated that
“when the supervisor actually coerces sex by abusing the
employer’s authority, and thus makes concrete the condition of
employment he has imposed,” his harassment “culminates in a
‘tangible employment action.’” Holly D., 339 F.3d at 1170.
Similarly, the court opined that the “injury” in “[submission]
29
cases—the physical and emotional damage resulting from
performance of unwanted sexual acts as a condition of
employment—is as tangible as an injury can be.” Id. at 1171.
Regardless of the accuracy of the court’s injury assessment, its
use of the word “tangible” underscores its fundamental mistake:
it analyzes tangibility from the employee’s perspective. While
this choice is necessary in assessing the victim’s injury, the
Ninth Circuit analyzed the tangibility of employment actions
from the same point of view, contrary to the Faragher/Ellerth
rationale clarified in Suders. Accordingly, the Ninth Circuit
found that a tangible employment action occurs “when a
supervisor determines that the retention of an employee in the
employer’s employ will depend on her participation in sexual
acts, and then . . . retains her in her position because she does”
participate. Id. Although some may prefer a rule holding an
employer strictly liable for such egregious misconduct, that rule
would not comport with the Faragher/Ellerth justifications for
imputing liability. For the current framework to be internally
consistent, tangibility should be determined from the employer’s
perspective. If a supervisor threatens an employee, and she
submits in order to avoid adverse consequences, the supervisor
has not committed an “official act” but merely threatened to do
so. The employer has no way of knowing that its delegated
authority has been brandished in such a way as to coerce sexual
submission. While it may still be liable in such a situation,
Faragher and Ellerth dictate that it be given the opportunity to
defend its conduct and demonstrate that any negligence was
committed by the employee.
Another problematic aspect of the Second and Ninth
Circuits’ approach to tangibility is that under their standard,
tangibility depends on the employee’s actions, not the supervi-
sor’s. If a supervisor threatens an employee with adverse
consequences unless she submits to his sexual demands, and the
employee resists, no tangible employment action occurs.
30
However, the employee’s reaction can apparently change the
nature of the supervisor’s action: if she changes her mind and
submits, the logic of Jin and Holly D. would suddenly demand
that the supervisor’s action be considered tangible, even though
the action itself has not been altered. Such a result would be
nonsensical; the only aspect of the situation that becomes more
tangible is the psychological injury to the employee, not the
supervisor’s action for which the employer is to be held liable.
Not only is this result illogical, it may also be at odds with
the policies considered by the Supreme Court in formulating the
Faragher/Ellerth framework. Allowing tangibility—and thus the
imposition of strict liability—to hinge on the employee’s
reaction rather than on the supervisor’s action itself “undermines
the avoidable consequences doctrine which the Supreme Court
incorporated into this area of law.” Speaks v. City of Lakeland,
315 F. Supp. 2d 1217, 1226 (M.D. Fla. 2004) (citing Ellerth,
524 U.S. at 764). “The Supreme Court’s stated goal in
Faragher/Ellerth was to balance agency principles of vicarious
liability with Title VII’s basic policy of encouraging employers
to promulgate and enforce anti-discrimination/harassment
policies and encouraging employees to avoid the harm caused
by harassment and discrimination by . . . reporting such miscon-
duct quickly.” Id. While an employee’s response to harassment
cannot retroactively transform a threat into a tangible employ-
ment action, her reaction is still important to the effectiveness of
Title VII. In order for our sexual harassment law to deter and
redress misconduct, victims must report harassing behavior as
promptly as possible. To find that a tangible employment action
was created by an employee’s acting contrary to this pol-
icy—submitting to the conduct rather than exposing it—does not
conform to the Supreme Court’s stated policy goals, let alone
the legal framework the Court formulated. The law is a limited
tool, and it cannot right every wrong. Empowering employees
to report unlawful behavior is far preferable to allowing abusive
31
situations to spiral out of control and attempting to patch up the
damage afterwards.
For all these reasons, I would therefore explicitly reject
Lutkewitte’s reliance on Jin and Holly D. in support of her
contention that a tangible employment action occurred so long
as Ehemann used his supervisory authority to coerce her into
submitting to his sexual advances. She argues that a reasonable
woman in her position would have believed that her job or
benefits would be in jeopardy if she did not submit. Hence, by
submitting, Lutkewitte ensured that the status quo—her contin-
ued employment with the FBI—would be maintained. While
this argument may be relevant to determining whether
Lutkewitte has stated a claim for sexual harassment, it has no
relevance under existing Supreme Court precedent in answering
whether a tangible employment action occurred and whether the
affirmative defense should therefore be permitted. Threats of
future adverse actions (whether explicit or implicit) may
culminate in a tangible employment action if carried out, but
they do not themselves meet that standard. Ehemann’s alleged
threats do not become tangible merely because Lutkewitte
feared for her benefits or because the FBI recognized that
Ehemann had an ongoing problem with favoring women he
supervised.13 Nor does Ehemann’s purported acceleration or
augmentation of Lutkewitte’s benefits—the use of a new
computer and a new car, receipt of overtime compensation in
cash rather than a mix of cash and time off, and enhanced
supervisory authority—constitute a tangible employment action.
13
The FBI’s knowledge of Ehemann’s general reputation for
treating female employees differently cannot act as a substitute for a
tangible employment action. Even if the FBI knew that Ehemann
sometimes acted inappropriately, that knowledge is not equivalent to
knowledge (actual or constructive) of specific misuse of delegated
authority.
32
The provision of those benefits is not adverse, nor is it tangible,
as none of the benefits is as “significant” as “hiring, firing, [or]
failing to promote.”14 Ellerth, 524 U.S. at 761. In the absence of
adverse actions on the record that would place the FBI on
constructive notice of Ehemann’s actions, no tangible employ-
ment action occurred, and the FBI should not be deprived of the
opportunity to present its affirmative defense.
VI
Finally, Lutkewitte argues that a tangible employment
action occurred when Ehemann used his supervisory authority
to require her to join him in New York. She argues that this
exercise of his authority placed her in a position where he was
better able to assault her. In support of this position, Lutkewitte
cites Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995). In
Tomka, the Second Circuit found that an employer could be held
liable for harassment by supervisors if the employee could prove
at trial that those supervisors used their authority to compel her
to attend a meeting, after which she was allegedly raped
repeatedly while intoxicated. Id. at 1307. However, while Tomka
may be useful in analyzing whether an employee has stated a
cognizable claim of harassment, it sheds no light on Faragher
and Ellerth’s creation of the affirmative defense framework
several years later. Ehemann’s summoning of Lutkewitte to
New York did not have a “significant effect” on Lutkewitte’s
employment status, Roebuck, 408 F.3d at 793; a short business
trip is not a “significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly
14
While a promotion to GS-14 clearly would have qualified as
“tangible” (though it still would not have been adverse), Lutkewitte
did not receive that promotion, and her increased supervisory
responsibilities were at most a prelude to a promotion, not themselves
comparable in scope to a promotion.
33
different responsibilities, or a decision causing a significant
change in benefits.” Ellerth, 524 U.S. at 761. While the Ellerth
list of tangible employment actions is not exhaustive, an action
must be of comparable significance in order to qualify.
Lutkewitte’s travel to New York does not qualify as “signifi-
cant” in this narrow sense, nor was it—on its own—adverse,
notwithstanding the alleged subsequent assaults.
In sum, while Lutkewitte’s proposed jury instruction was
supported by the evidence she presented at trial, the instruction
itself was legally flawed. None of Lutkewitte’s alleged tangible
employment actions merits that title under existing Supreme
Court precedent. The district court therefore properly decided
not to give Lutkewitte’s requested instruction, or any tangible
employment action instruction, to the jury. I believe these legal
principles, rather than an assertion of the paucity of the record,
provide a stronger justification for our decision and a rationale
to guide future cases.