EntertainHR

Workin’ Moms Employment Issues, Revisited

This week, we revisit not only a series I’ve previously written about but also an issue I blogged about in my first-ever “EntertainHR” post.

Spoilers Ahead

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The last time we checked in on our Workin’ Moms, Kate Foster (Catherine Reitman) walked out of a super-important business pitch to be with her son, Charlie, who was in the hospital. Fast-forward a few months, and Kate is now working part time at Gaze. Over the course of a few episodes, she manages to moonlight at another company, get fired from both jobs on the same day, sue Gaze, settle her sexual discrimination claims, open her own PR company (Kate Foster PR) with the settlement proceeds, separate from her husband, and give birth to a daughter.

Whew, that’s a lot. But there’s more.

Kate hires her ex-boss Richard’s (Peter Keleghan) 21-year-old son, Forrest (Donald MacLean, Jr.), who still lives with Richard, as an assistant at Kate Foster PR. She has a sexual relationship with Forrest, he gets jealous of her relationship with Mike Bolinksi (Victor Weber), and Forrest quits. Then, he sues her for sexual harassment. In a nutshell, Kate’s husband, Nate (Philip Sternberg), an attorney, ends up representing her in a proceeding that resembled a mediation, Forrest heads toward dropping the suit, and Forrest’s dad hits the nail in the coffin by giving Forrest an ultimatum to either drop the suit or move out.

How does the claim against Kate differ from the claim against Kimmy (detailed in my first “EntertainHR” post)? Forrest quit. An employer is strictly liable for sexual harassment if it results in a tangible employment action. A tangible employment action can be adverse, usually resulting in direct economic harm, and nonadverse, when an economic benefit is conferred on the recipient of the harassment.

Is Quitting a Tangible Employment Action?

While it is clear that termination is a tangible employment action, is quitting a tangible employment action? Constructive discharge is when an employee resigns under circumstances that the employee and a reasonable person would consider intolerable. In situations involving alleged constructive discharge, an employer may still avail itself of the defense that 1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior (which could include an antiharassment policy), and 2) the harassed employee failed to take advantage of any preventive and corrective opportunities provided by the employer or otherwise mitigate his or her harm. However, if the employee resigned in response to an adverse action taken by the employer that changed the employee’s job status, the affirmative defense is not available.

Would the affirmative defense been available in the Kate-Forrest situation? Well, it doesn’t appear that Forrest’s working conditions were intolerable—he just got jealous of Mike, a potential love interest of Kate’s. Furthermore, Kate didn’t take any adverse action against Forrest that precipitated his resignation. However, during the mediation, it was revealed that Kate Foster PR didn’t have an antiharassment policy. Therefore, though the affirmative defense could have been asserted, there was no antiharassment policy to support that Kate Foster PR exercised reasonable care to prevent sexually harassing behavior.

In case you are wondering, things do get better for Kate, but I may be speaking too soon. I’m not totally caught up yet.

Surprisingly, Kate’s entanglement is not far-fetched. However, maintaining and publicizing a comprehensive sexual harassment policy that has a flexible reporting procedure that allows employees to report sexually harassing conduct to a person who does not report to the CEO (particularly in cases when the CEO is the alleged harasser) could have saved Kate Foster PR—Richard’s help aside—and it can benefit employers alike.