Appeals Judges Uphold Employer Sexual Harassment Defense

The US 9 ^th Circuit Court of Appeals, in approving a ruling by US District Chief Judge John Coughenour of the US District Court for the Western District of Washington dismissing the sexual harassment claims by plaintiff Hugh Hardage, ruled that station officials tried to prevent employee sexual harassment and then quickly dealt with Hardage’s complaint when it arose.

Hardage, a sales executive for KTSW, alleged that Kathy Sparks, the station’s general manager, sexually harassed him on a number of occasions both in and out of the office. According to the appellate ruling by Circuit Judge J. Clifford Wallace, station HR executives contacted Hardage and offered to intervene anonymously about the incidents, but he declined and said he preferred to deal with it himself.  

Then the economy took a downturn, and Hardage began missing his sales goals­. Counseled for poor performance, he quit and then sued for harassment by claiming he was effectively forced to quit as a form of retaliation.

However, both in the lower court case before Coughenour and the appellate case at the 9 ^th Circuit, the courts relied on two 1998 landmark sexual harassment cases from the US Supreme Court. In a workplace sexual harassment scenario, the high court said in the cases, the employer can’t be held liable if:

• it took no “tangible employment action” against the worker
• it exercised reasonable care to prevent and correct harassment
• the worker unreasonably failed to take advantage of preventive or corrective opportunities.

The opinion in Hardage v. CBS Broadcasting, U.S. Court of Appeals for the 9th Circuit, No. 03-35906 (11/1/05) is  here .