Lutkewitte, Janet v. Gonzales, Alberto

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.