In my anti-harassment/anti-discrimination policy, there is a paragraph which instructs workers to bring issues, even if precipitated by a customer or other outsider, to the notice of management. What happens if an employer knows or should have known that an employee has been harassed by a third party but fails to act promptly and remedially to end the unacceptable behavior?

The 4th Circuit Court of Appeals has answered this question in a case of first impression. The plaintiff, a customer service representative, was harassed by a sales representative for a supplier, allegedly on a daily basis, for four years. He showed her photos of nude women on his cell phone, referred to his post-inebriated behavior using racial slurs, and called her by a racial and sexual epithet. He also referred to her co-workers as “black b*****s” and told another employee that he planned to have sex with one of her daughters. The employee asked him to stop and repeatedly discussed the situation with her direct supervisor as well as the harasser’s employer. The supervisor, while admitting that the harasser was “a pig” but took no action other than telling him in an ineffectual way to stop using inappropriate language. His employer did even worse: he laughed.

She then complained to HR, which first banned him from the premises but later authorized his return so long as he did not communicate with her and that his on-site schedule be screened by the supervisor. However, the employee alleged that the potential for future harassment caused her so much anxiety that she took a medical leave of absence and subsequently resigned. She sued in federal court alleging sexual and racial harassment. The trial court dismissed the harassment claims because she did not produce evidence of a dispute as to whether the harassment was objectively severe or pervasive AND added that liability could not be imputed to her employer because she had not pursued alternate avenues for complaint.

The 4th Circuit disagreed. When abusive behavior is regular and over such a lengthy period, the court reasoned that a reasonable jury could find that it was objectively severe or pervasive. (It makes you wonder what the district court was thinking or if the judge could even deal with harassment concepts on any rational level!) But, moreover, the court held that an employer may be liable for the actions of third parties if it knew or should have known of the harassment and failed to take appropriate remedial action. Clearly, the supervisor knew of the harassment and did not refer the matter to HR or up the food chain.

This decision puts employers on notice to do the following:

• Review harassment policies---If you don’t have one, IT IS A MUST! If you do, it should reference third parties such as customers or vendors so that employees understand that their inappropriate behavior should be reported to management.

• Train supervisors---Supervisors are typically the weak link. If they shove things under the rug, it will cost you dearly in the end.

• Require supervisors to report all harassment, even if the victim does not come forward.

• Take ALL complaints of harassment seriously.

• Whenever harassment is substantiated by an proper investigation (and you should alert legal counsel prior to any investigation to insure that it is carried out appropriately), document the remediation.

• Always follow up. Never assume that the harassment has stopped as a consequence of the disciplinary action.

Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.