by Art Gutman Ph.D., Professor, Florida Institute of Technology

The alleged facts in Kurtts v. Chiropractic Strategies Group [2011 U.S. Dist. LEXIS 22144, 3/4/11] are that Crystal Kurtts, a receptionist at a chiropractic clinic in Alabama complained that her supervisor, Dr. Johnnie Morgan, exposed her to hostile sexual harassment by feeding her a steady diet of unwanted sexually explicit text messages and repeated attempts at physical contact. Kurtts complained to Deborah Gonzalez, the clinic administrator, after which she quit her job. District Court Judge Bert W. Milling Jr. ruled that Morgan subjected Kurtts to unwelcome sexual harassment that was “sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” Judge Milling also ruled that Kurtts suffered a constructive discharge, or that “a reasonable person would have resigned under the factual circumstances as they have been presented herein.” Nevertheless, Milling granted summary judgment for the employer because there was a sexual harassment policy in place to prevent and promptly correct sexual harassment and Kurtts unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Two aspects of this ruling make sense. First, based on the Supreme Courts 1999 rulings in Burlington v. Ellerth [524 US 742] and Faragher v. City of Boca Raton [524 US 775], it is clear that Kurtts suffered hostile sexual harassment by a supervisor for which the employer has vicarious liability. However, second, the employer had a strong affirmative defense because Kurtts failed to allow the employer to take corrective action. For example, in Shaw v. AutoZone [(CA7 1999) 180 F.3d 806] the harasser (Noble) was a store manager and the victim (Shaw) was an assistant store manager. AutoZone had a sexual harassment policy that was distributed to all employees in a handbook, there was extensive training for Shaw and all other managers. Shaw never complained to upper-level management, but instead quit and filed a Title VII claim. Shaw also refused to participate in an exit interview, and ignored three subsequent invitations to explain what happened. The 7th Circuit favored AutoZone, ruling:

This anti-harassment policy made clear AutoZone's stand that sexual harassment will not be tolerated, and provided for multiple mechanisms for the prompt resolution of complaints. It is both specific and detailed… In addition to distributing this policy to its employees, AutoZone regularly conducted training sessions on sexual harassment.

What is questionable in the present case is whether, based on the Supreme Court’s 2004 ruling in Pennsylvania State Police v. Suders [542 US 129], Kurtts was constructively discharged. In Suders, Justice Ginsburg ruled:

This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions

Ginsburg also cited examples of “how the ‘official act’ … should play out when constructive discharge is alleged.” For example, in Robinson v. Sappington (CA7 2003) 351 F.3d 317], Robinson, a judicial secretary, was harassed by Sappington, a county judge. Robinson requested a transfer that was granted by the presiding judge (Granias). However, upon approving the transfer, Granias warned Robinson that the “first six months … would probably be hell” and that it would be in Robinson’s “best interest to resign,” which she ultimately did. The 7th Circuit ruled that Granias’ actions were “official” and invoked strict employer liability (i.e., no affirmative defense).

Compare this to Reed v. MBNA [(CA1 2003) 333 F.3d 27], in which Reed, a 17-year-old telemarketer was harassed at work by Appel, her 34-year-old supervisor. One evening, Appel assaulted Reed while she was babysitting in his home. He then threatened Reed, telling her they would both be fired if she complained to management. Despite the physical assault and the threat of retaliation, the 1st Circuit ruled that Appel’s conduct was “exceedingly unofficial,” terming it “exactly the kind of wholly unauthorized conduct for which the affirmative defense was designed.”

In short, the facts in Kurtts v. Chiropractic Strategies are more similar to Reed v. MBNA than Robinson v. Sappington, suggesting there was no official change in employment status, and hence, no constructive discharge. Either way, the ruling points to the value of having a strong anti-harassment policy.

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