Issues in Employment Law

June 2002

Employees in the District of Columbia may suffer adverse employment actions which are short of a reduction in pay or benefits, or other "ultimate" employment decisions, such as would subject them to liability under the civil rights laws.

Some Courts, including the federal courts in Maryland and Virginia, hold that for an employee to have suffered an adverse employment action such as would permit an employment discrimination suit, the action must affect the ultimate employment relationship, such as hiring, promotion or pay.

However, the DC Circuit Court of Appeals, in Currier v. Postmaster General (No. 01-5248), used a "comparative judgment" analysis to determine whether a personnel action had such adverse consequences. In this analysis, the court looks at the employee's employment situation immediately before the adverse action and compares it to his situation immediately afterwards. The employee must be worse off to suffer an objectively tangible harm. Reassignment to a materially lower position with materially lower duties with no change in pay or benefits could constitute such action.

An action may be sufficiently adverse if it results in "materially adverse consequences affecting the terms, conditions, or privileges" of the employment of the employee that reasonably caused him or her "objectively tangible harm." Employers need to be aware that any such action could be the basis for a discrimination suit even if the employee's pay is not affected.

Employers need to have a sexual harassment policy where they educate all employees about what constitutes sexual harassment and need to take every complaint of sexual harassment seriously by conducting thorough investigations.

The Fourth Circuit Court of Appeals, which is responsible for Federal Law in Virginia, Maryland, West Virginia, North Carolina, and South Carolina, in Ocheltree v. Scollon (308 F.3d 351), said that a hostile work environment violation is established under Title VII by proving four elements: (1) the conduct was unwelcome, (2) based on the sex of the plaintiff, (3) sufficiently severe or pervasive to alter the conditions of employment and to create an abusive work environment, and (4) liability is imputable to the employer. The Court found that a vulgar song sung to a female employee by a male co-worker and the male co-worker's simulated sex with a mannequin in the female employee's presence could be construed as Title VII gender-related harassment if it was so severe or pervasive as to meet the third prong. Although this court in Ocheltree did not find that these two isolated incidents alone constituted a hostile work environment, it noted that a series of similar incidents could.

Employers can help protect themselves by having a mechanism whereby allegations of harassment are reported, and by taking some action upon such a report. This involves conducting a thorough investigation and possibly even disciplining perpetrators of the harassment.