SW Legal studies in Business

Constructive Discharge Occurred When Employee Left Under Supervision of Harasser
Description Appeals court affirmed verdict against an employer that failed to respond to a complaint by an employee that her supervisor was sexually harassing her. Failure to respond to the complaint means the company loses the defense that it has an effective harassment policy.
Topic Employment Discrimination
Key Words Sex Discrimination; Constructive Discharge; Harassment
C A S E   S U M M A R Y
Facts Jaros worked for LodgeNet. She claimed that her supervisor harassed her. He discussed his sexual abilities, commented on her body and appearance, suggested they watch pornographic movies and have sex, and once tried to unzip her sweater. She reported the harassment to human resources (HR), which requested details and said that the details would have to be shared with the supervisor. Because she was afraid of retaliation she did not provide details, so HR refused to do anything, but suggested she confront her supervisor about the matter. Jaros was left under the supervisor's direction. She resigned. HR then investigated and learned from other women employees of similar actions by the supervisor toward them. The supervisor resigned. Jaros sued LodgeNet for constructive discharge due to harassment. The trial court found for Jaros and awarded her $300,000; LodgeNet appealed.

Affirmed. Constructive discharge means that an employer must have intended or at least reasonably foreseen that the employee would quit as a result of the unlawful working condition it created. The employee must have given the employer a reasonable opportunity to fix the problem. "An employer is liable for sexual harassment by a supervisor against a subordinate if the harassment results in a "tangible employment action" against the subordinate." Constructive discharge is a tangible employment action. It prevents the employer from raising the affirmative defense that allows it to show that it took reasonable care to prevent and correct harassment. Since the employer did not investigate the complaint, or remove Jaros from the supervision of the harasser, the employer did not have an affirmative defense.

Citation Jaros v. LodgeNet Entertainment Corp., 294 F.3d 960 (8th Cir., 2002)

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