Burlington Industries essay

Burlington Industries, Inc. v. Ellerth

Burlington Industries, Inc. v. Ellerth

While working at Burlington Industries, Inc. Ellerth suffered sexual harassment from her supervisor, Slowik that made her work very difficult. The sexual harassment did not create a tangible employment action. Burlington has a sexual harassment policy that Ellerth never used to report the case. Instead, she quit her job and took the company to the court while she had not reported the issue of sexual harassment to the company. The court held that she could bring a cause of action for hostile environment sexual harassment.

What do you think of the Court not allowing the affirmative defense if there was a tangible employment action, e.g., a demotion, undesirable reassignment, or discharge?

The court’s failure to allow the affirmative defense if there was a tangible employment action such as a discharge, demotion, or undesirable reassignment would be lawful because this is stated clearly under vicarious liability. A court is only allowed to take an affirmative defense to liability when an employer applied reasonable care to interrupt and correct immediately any cases of sexually harassing behavior or that the plaintiff employee, without any reason, did not take advantage of any corrective or preventive opportunities that are provided within the company by the employer to prevent harm to the employee (Bennett, Burlington Industries, Inc. v. Ellerth, 1998, 2012).  

When the court disallows an affirmative defense if there was a tangible employment action such as discharge, demotion or undesirable reassignment, it means that the court has followed the procedure laid down to cover such. In this case, if the court disallows the affirmative defense if there was a tangible employment action such as a discharge, demotion, or undesirable reassignment, the court would be wrong because the action of the supervisor would have led to a tangible employment action. In addition, Eilerth has not alleged that she suffered a tangible employment action at the hands of Slowik, her supervisor. The company has provided a policy that covers sexual harassment that is to be used by all employees to report any form of sexual harassment directed towards them. Despite the fact that the court can disallow an affirmative action based on the assumption that the employer failed to exercise reasonable care, Ellerth cannot prove the company failed to do so because she never reported any form of harassment laid against her at any time. This gives the company all reasons to be allowed vicarious liability (Burlington Industries, Inc. v. Ellerth, 1998).

Does it make sense to you to allow an employee to bring a sexual harassment cause of action if the employee suffered no adverse tangible employment action?

An employee can bring a sexual harassment case if he/ she did not suffer adverse tangible employment action because sexual harassment has other effects other than adverse tangible employment action.  Whether there is an adverse tangible employment action or not, sexual harassment is still considered a crime because it does not just affect the performance level of an employee but also affects them as individuals, psychologically and emotionally. For example, Ellerth decided to quit her job not because of any adverse tangible employment action that had been caused, but because she was unable to deal with issues of sexual harassment as a person. A case of sexual harassment cause of action should not be considered only when there is an adverse tangible employment action because whether or not adverse tangible employment action is present, sexual harassment is still a crime. For instance, in Eilerth’s case, the court stated that Burlington Company is still subject to vicarious liability for Slowik’s behavior if Eilerth could prove that it happened. The company can only get off the hook if it asserts and proves the affirmative defense to liability (Bennett, Burlington Industries, Inc. v. Ellerth 1998, 2012).

A cause of sexual harassment can even be brought when a company failed to prevent and/or correct promptly any sexual harassing behavior, even if it did not result to a tangible employment action. For instance, Eilerth did not suffer any tangible employment action even though she experienced issues of harassment. In fact, Eilerth had been promoted in the company where she worked. If Eilerth reported the case of sexual harassment without suffering a tangible employment action, the case is viable because the sexual harassment occurred. If this is not done, managers could get away with sexual harassment issues by not creating a tangible employment action for the people they direct the sexual harassment to. Slowik could have avoided a tangible employment action knowing that if it is caused, it could create trouble for him. A case of sexual harassment can be brought even in issues where a person is engaged in sexual harassment activity (Solotoff & Kramer, Oncale v. Sundowner Offshore Services, Inc., 1998, 2000) creates a hostile environment for the victim.

>Do you understand why the Court would allow this affirmative defense in cases where there is no loss of tangible job benefit, but not in cases where there is such a loss?

The court would allow the affirmative defense in cases where tangible job benefit exists. However, this is not in cases where there is no such loss exists because it still contravenes the Title VIII of the EEOC guideless meant to protect employees. It is not always the case that sexual harassment would result to tangible employment action that leads to a loss. Sometimes, managers or supervisors can grant employees a tangible job benefit as an act of sexual harassment to make them give in to their demands. Before the Burlington Industries, Inc v Ellerth, (1998), sexual harassment cases were only considered under quid pro quo, which means job benefits that are made contingent on the fulfillment of sexual favors to the employer or supervisor, and hostile environment considerations. This was especially after the Meritor Savings Bank v. Vinson, 477 US. 57, case. This case is related to this one because Vinson, just like Ellerth had not reported the sexual harassment problem to the bank, yet the court of appeal held that harassment could involve conditioning of employment benefits on sexual favors and creation of a hostile or offensive working environment, the latter, which Ellerth experienced. Therefore, this scenario would apply to the fact that sexual harassment happened outside the scope of employment where the employer authorized the harasser (Bennett, Meritor Sav. Bank, FSB v. Vinson, 2012).

Therefore, it is understandable for the court to allow this affirmative defense in cases where there is no loss of tangible job benefit because sexual harassment still happens also in scenarios where there is no loss of tangible job benefit.

Recommendations and final solution

            Ellerth should sue Burlington Company for vicarious liability even though she did not suffer a tangible employment action. She should sue the company because Slowik’s behavior created a hostile and offensive working environment for Ellerth and made her unable to deliver her responsibilities.

            The solution in this case would be for Burlington to take responsibility and reinstate Ellerth or pay her for the damages caused. This should be the court’s decision if the case moves forward. Slowik should be held responsible for his behavior and suffer the consequences. In short, the court should hold Burlington responsible for vicarious liability.