Massachusetts Employment Law Letter

One week of passion leads to years of litigation

There are two types of sexual harassment claims:  quid pro quo and hostile work environment.  Quid pro quo sexual harassment is when a supervisor uses his superior position to obtain favors of a sexual nature from a subordinate or retaliates against a subordinate who has rejected advances.  Hostile work environment claims are based on unwelcome conduct of a sexual nature that is sufficiently severe and pervasive to alter the subordinate’s terms and conditions of employment and both objectively and subjectively offensive.  Employers are vicariously liable for hostile work environment sexual harassment committed by supervisors and strictly liable for quid pro quo claims.  Thus, it should not be any surprise that office romances between supervisors and subordinates can lead to complaints of sexual harassment for the employer and individual liability for the supervisor. 

“That fling didn’t mean a thing!”

Dr. Melissa Gerald began working for the University of Puerto Rico in 2001 as the Scientist in Charge and an Assistant Professor at the Cayo Santiago Field Station Research Facility in Puerto Rico.  Dr. Edmundo Kraiselburd was her immediate supervisor.  By all accounts, Gerald and Kraiselburd had a merely friendly working relationship until 2005, when the two attended a conference in Cuba.  During the week-long conference, the two engaged in a sexual affair.  Upon returning to Puerto Rico, Gerald, embarrassed by the affair, told Kraiselburd she wished to end it.

Two years later, in April 2007, Gerald gave Kraiselburd a ride home from a work dinner.  When she dropped him at his hotel, Gerald claimed that Kraiselburd propositioned her by gesturing to the hotel and stating that an offer was on the table.  Gerald declined and believed that Kraiselburd was angry at her refusal.  In the days following the dinner, Kraiselburd sent a series of e-mails to Gerald that, although vague, could have been interpreted as referring to a sexual offer being on the table.

The two clashed over various work-related topics via e-mail in the coming months.  In May 2007, Kraiselburd accused Gerald of not being dependable.  The two met to discuss their differences on May 29 and at the end of that meeting, Gerald alleged that after a hug and a kiss on the cheek, Kraiselburd grabbed her breast and made sexually suggestive noises.  Although Gerald was disgusted by this conduct, she did not complain as she feared losing her job.

Work problems begin

Two weeks later, the two attended a meeting with co-workers to discuss a conference.  During the meeting, Kraiselburd allegedly asked Gerald what it would take for her to have a sexual relationship with him.  Shortly thereafter, Kraiselburd quarreled with Gerald about her work hours over lunch.  Ultimately, Gerald argued back in a raised voice and ultimately walked out.  That same date, Kraiselburd e-mailed Gerald and told her that due to budget limitations she would no longer be the Scientist in Charge.  A few days later, he changed his mind, but he told her she would no longer receive her monthly bonus.  Gerald responded by lobbying for her bonus and requesting a face-to-face meeting to discuss the matter.  The following month, Kraiselburd relieved Gerald of her administrative duties, changed her title to Resident Scientist, and cut her bonus.  A few days later, she was promoted to Associate Professor at the Medical Sciences Campus.

The investigation into her complaint

            In August 2007, Gerald met with Dr. Jose Carlo Izquierdo to file a sexual harassment complaint against Kraiselburd and an outside attorney investigator interviewed Gerald, Kraiselburd, and her co-workers.

The investigator ultimately concluded that Gerald’s complaints were not credible and that it was unlikely that she was propositioned at the hotel or that Kraiselburd grabbed her breast.  The investigator also concluded that Kraiselburd’s conduct was not unwelcome because Gerald and Kraiselburd often joked in a sexual way.  Incredibly, the investigator recommended that the University consider filing an administrative charge against Gerald to determine if she had breached her job duties or filed a false grievance.  She also recommended that Gerald be transferred to another facility, and Gerald was transferred on December 7, 2007, and her title was changed to Staff Scientist.  She later resigned.

The litigation begins

Gerald filed a lawsuit against the University and Kraiselburd alleging that she had been sexually harassed by Kraiselburd.  After reviewing all of the facts, the trial court dismissed the case finding that Kraiselburd’s conduct was not sufficiently severe or pervasive and that decisions about Gerald’s employment were not related to Kraiselburd’s sexual advances.  Gerald then filed an appeal with the First Circuit Court of Appeals.

Quid pro quo

Gerald brought claims for both quid pro quo and hostile work environment sexual harassment.  The First Circuit disagreed with the trial court and determined that Gerald’s claims should go to trial.  Specifically, the court noted under quid pro quo sexual harassment, a supervisor uses his or her position to request sexual favors from a subordinate employee or retaliates against that employee for refusing those advances.  Gerald had argued that Kraiselburd demoted her because she turned down his advances.  The University had countered that her change in title occurred because of her poor job performance and insubordinate conduct.

The First Circuit found that Gerald’s claims should proceed to a jury trial.  The court looked at e-mails between the two sent both before and after Kraiselburd propositioned Gerald at the hotel.  Although ambiguous, the court reasoned that a jury could infer that Kraiselburd was referring to an offer of a sexual nature.  Additionally, Gerald presented evidence that suggested that she was given good performance reviews up until the night Kraiselburd propositioned her at the hotel.  Viewing all of the evidence, the court determined that a reasonable jury could believe that Kraiselburd used Gerald’s negative reaction to his advances as a basis for decisions he made about her employment.

Hostile work environment 

The appeals court also allowed Gerald’s hostile work environment claim to go to trial.  In order to establish a claim for hostile work environment harassment, Gerald has to establish:  (1) she was subject to unwelcome harassment based on her sex; (2) that was sufficiently severe or pervasive; (3) and was both subjectively and objectively offensive; and (4) that the employer is liable.

The First Circuit concluded that Gerald had presented enough evidence that Kraiselburd’s conduct was unwelcome.  The University argued that Gerald had told off-color jokes at work, showing that such conduct was not unwelcome.  The court, however, determined that an employee does not consent to being groped at work by simply telling risqué jokes.  Furthermore, Gerald had turned down Kraiselburd’s sexual advances at the hotel, and there was no evidence suggesting that she encouraged him to grab her breasts.

The court also determined that Gerald had shown that the conduct was sufficiently severe or pervasive, considering the severity of the conduct, its frequency, whether it is physically threatening, and whether it interfered with the individual’s job performance.  The court determined that the incident where Kraiselburd allegedly grabbed Gerald’s breast and made sexually suggestive noises incident was, by itself, sufficiently egregious to make out a potential hostile work environment claim.  Moreover, the court noted that the other alleged incidents could be reasonably viewed as severe.

The court also examined whether the conduct was objectively and subjectively offensive by looking at whether a reasonable person would find the conduct hostile and whether Gerald perceived it to be so.  Looking to Gerald’s evidence, the court determined that a jury could conclude she was subjectively offended:  she was bothered by his invitation to the hotel room, disgusted when he grabbed her, and she was seeking treatment for depression.  The court also determined that the conduct could be considered objectively offensive because it involved unwelcome, non-consensual touching, an invitation for sexual relations, and public comments regarding sexual contact.

Lastly, the court concluded that there was liability on behalf of the employer.  Since Kraiselburd was Gerald’s supervisor, the University could be held vicariously liable for his conduct.  In sum, since Gerald could make out a claim for hostile work environment sexual harassment, the court allowed her sexual harassment claim to proceed to trial under both theories.

Bottom line

Under both federal and state law, employers are vicariously liable for harassment committed by an employee’s supervisor and the supervisor can also be held individually liable for sexual harassment, whether quid pro quo or hostile work environment.  The only way to protect your company against litigation like this is to train your supervisors about the dangers of romantic liaisons with their subordinates and the liability that can result from such conduct.  Contact your labor and employment counsel or BLR for information on anti-harassment training that can help avoid these claims.

Article By: Amelia J. Holstrom
Reprinted from the August 2013 issue of the  Massachusetts Employment Law Letter.

Amelia J. Holstrom is a Partner at the firm Skoler, Abbott & Presser, P.C. Amelia can be reached at (413) 737-4753 or aholstrom@skoler-abbott.com .