South-Western Legal Studies in Business

Employer’s Offer to Help Employee with Sexual Harassment Claim Is Affirmative Defense

Appeals court held that an employer had an affirmative defense against an employee who claimed he was constructively discharged due to sexual harassment. The employer offered to help the employee, but he rejected assistance.

Topic Employment Discrimination
Key Words

Sexual Harassment; Retaliation; Constructive Discharge

C A S E   S U M M A R Y

Hugh Hardage worked for CBS in Seattle. His supervisor was Patty Dean. Her supervisor was Kathy Sparks. Hardage claimed he was subject to sexual harassment by Sparks. Others testified that there was a lot of sexual banter between the two. Hardage claimed that Sparks suggested sex several times, but that he said no. When he complained to Dean, she contacted higher-level personnel. A representative from human resources, Falcone, talked to Hardage about the matter. Hardage told him of the problem in general, but did not provide any specifics. Falcone said he would handle the matter, but Hardage said he would handle it himself. They spoke two weeks later and Hardage again said he would handle it. Dean was critical of Hardage’s work performance. He resigned and sued CBS and Sparks for sexual harassment and retaliation, contending that his negative evaluation was triggered by his complaints about the harassment. The trial court dismissed the suit. Hardage appealed.


Affirmed. Hardage claims he was subject to constructive discharge. That claim fails. His employer offered more than once to help deal with his claims of sexual harassment, but he failed to take advantage of the assistance, so he cannot assert constructive discharge against his employer. Hardage unreasonably failed to take advantage of preventive or corrective opportunities, so the employer had an affirmative defense. There was no showing that Hardage’s negative work evaluation by his supervisor was related to his harassment claims.


Hardage v. CBS Broadcasting, Inc., ---F.3d--- (2005 WL 2850171, 9th Cir., 2005)

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