Employer liability claims and tangible employment action

On Behalf of Dunlap Fiore, LLC |

Businesses that must make certain they are protected from employer liability claims when there are allegations of harassment will undoubtedly be aware of certain legal terms. One is “tangible employment action.” When there are claims that a violation of employment law has taken place and an employee or former employee alleges sexual harassment, tangible employment action can be a key to the case.

The employer is liable for harassment by a supervisor if it results in a tangible employment action. This is when there is a significant change in employment status. If there are threats made and they are not carried out, this does not qualify. For there to be a tangible employment action, it is when the supervisor uses his or her position to act against subordinates. The criteria are: it is an official act from the enterprise; it is documented in the company’s records; it can be reviewed by those above the supervisor; and it will generally need to be approved by the enterprise.

The tangible employment action will usually cause economic harm to the person. In most cases, it can only be done by a supervisor or someone who has authority with the job. Examples include: hiring or dismissing the employee; giving promotions or failing to give promotions; demoting the person; giving an undesirable reassignment; causing a change in benefits with a decision; deciding on compensation; or making a change in work assignments. Without any of this occurring, it will not be considered tangible.

People who are accused of committing harassment might not realize that there is a line of defense based on tangible employment action. This is a key part of employment law when defending against various allegations against supervisors. Having legal assistance is vital to formulating a competent defense based on tangible employment action.

Source: eeoc.gov, “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors — IV. Harassment by Supervisor That Results in a Tangible Employment Action,” accessed on Sept. 5, 2017