Reading the Second Circuit’s decision in Duch v. Jakubek (decided on Friday, December 4th), a distinct image came to mind: The ostrich who sticks its head in the sand.
Why the ostrich? Because, the Duch case discusses what to do with a supervisor who purposely ignores evidence of sexual harassment. And the court concludes that the supervisor should have known that a female subordinate was being sexually harassed and should’ve done something about it.
The Second Circuit doesn’t issue a lot of decisions discussing sexual harassment claims. Thus, this case is likely to be cited in the future — particularly where the employer claims that the supervisor was under no obligation to do anything.
The plaintiff in this case claimed that she was harassed by a co-worker. When she was assigned to work with that worker, she asked her supervisor to change her schedule. When the supervisor spoke about this with the plaintiff about the background, she said she did not want to talk about it and the supervisor dropped the matter saying, allegedly, "I don’t want to know what happened."
The plaintiff then spoke with an EEO liaison, supposedly in the liaison’s role as a friend to the plaintiff. The EEO liaison was instructed not to report the harassment by the plaintiff. Afterwords, with no followup, the plaintiff allegedly suffered further mentally. Eventually, after a new EEO liaison was put in place, an investigation was conducted.
So, who may be liable for sexual harassment?
The Second Circuit first said that the employer did provide a reasonable avenue to complain. The court said that even though the EEO liaison may not have been the best EEO liaison (and could’ve received more training), it is not the effectiveness of the avenue of complaint that is at issue. Rather, the employer is only liable for co-worker harassment if it provided no reasonable avenue to complain.
Nevertheless, the Court concluded that the employer may still be liable if “knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." For this analysis, it relied on what the supervisor did (or did not) do.
Here, the supervisor knew that the plaintiff did not want to work with the co-worker and that the co-worker had engaged in inappropriate (and sexually charged) misconduct in the past. Moreover, the supervisor said that he did not want to hear the specifics from the plaintiff when she approached him.
Because of this, the court concluded that summary judgment in favor of the employer is inappropriate. Rather, the court held, there may be sufficient facts that a jury could conclude that the supervisor knew or should’ve known about the co-worker harassment. (The Court finds that the EEO liaison did act reasonably though under the circumstances.)
In doing so, the court added that it is not try to create unreasonable expectations for supervisors:
In so holding we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees. We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem—as [the supervisor here is] alleged to have displayed—will not shield an employer from liability under Title VII.
Because the employer’s investigation did not commence for another three months after the initial complaints, the Second Circuit held that the employer could be liable for harassment and ordered that a trial be held.
The takeaway for employers from this case is yet another reminder that despite all the policies and procedures an employer may enact, those policies aren’t effective unless managers and supervisors are trained to act on them. All complaints of sexual harassment, no matter how trivial at the time, should be followed up. Supervisors should be reminded of their obligations to followup on complaints and to report such complaints to the appropriate person within the company.
And giving supervisors the image of the ostrich in the sand, may help remind them that purposeful ignorance of the issue will not make it go away.
(H/T Wait a Second)