Employment Law Daily Failing to report boss who joked about, joined in harassment by coworker may have been reasonable
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Friday, December 8, 2017

Failing to report boss who joked about, joined in harassment by coworker may have been reasonable

An employee who claimed she was forced to resign after her supervisor responded to her complaints about a male coworker’s sexual harassment by making jokes and suggesting that she should just “give in” to his advances, and then failed to respond to her complaints about the coworker’s retaliatory harassment and even joined in, defeated summary judgment on her Title VII claims of sexual and retaliatory hostile work environment and constructive discharge. A federal court in North Carolina determined that several triable issues existed, including whether the conduct was sufficiently severe or pervasive and whether her failure to report the supervisor’s harassment was reasonable (Goad v. North Carolina Farm Bureau Mutual Insurance Co., Inc., December 4, 2017, Eagles, C.).

Just “give in” to harassment. When the employee reported the male coworker’s unwanted sexual invitations to her supervisor, he first downplayed the harassment and made a joke about it, and once completely ignored her complaint. He also suggested that she should give in to the harassment and have sex with the coworker, and that she should “make it work” with the coworker because of his sales.

Continued complaints. The supervisor spoke with the coworker about her complaints and he eventually stopped making sexual comments. However, he began making false accusations against her and staring at her. On one occasion, he became so physically threatening that another employee had to step in. The employee continued to complain to her supervisor on an almost daily basis and he promised that the situation was being “worked on.” He also told her that she should not raise her concerns with higher-ups, as that would make it worse for her.

Eventually resigns. The situation with the coworker became so bad that the employee kept a loaded gun on her desk and her other coworkers would not leave her alone in the office with him. In addition, her supervisor began making repeated sexual and overly personal comments to her, many in front of other coworkers. She eventually resigned due to the hostile environment and fear for her safety and was subsequently diagnosed with depression and a trauma-related stress disorder.

Actionable HWE. Denying summary judgment on her gender-based and retaliatory HWE claims, the court rejected the employer’s contention that the harassment was not sufficiently severe or pervasive to create an actionable hostile work environment. Noting that this issue is “quintessentially a question of fact,” the court found that triable issues existed as to whether the was environment was both objectively and subjectively offensive.

Jury to consider employer’s liability. Triable issues also existed as to whether the employer knew or should have known about the harassment and failed to take effective action to stop it. The employee presented evidence that she repeatedly complained to her supervisor about the coworker’s erratic and retaliatory conduct, who repeatedly made false accusations and bullied her after she complained about him and refused his sexual advances. Beyond assuring her that he was “working on it,” the supervisor did not stop the continuing harassment but instead began harassing her himself. On this record, a jury could conclude that the employer had notice and failed to respond with remedial action reasonably calculated to end the harassment.

Followed policy as to coworker’s harassment. The court rejected the employer’s contention that it could not be charged with constructive knowledge because the employee failed to comply with its anti-harassment policy urging employees to report any harassment to their supervisor, HR, or the general counsel. To that end, the employee testified that she repeatedly reported the coworker’s harassment to her supervisor, who did little to stop it. Accordingly, to the extent her HWE claim was based on her coworker’s harassment, she complied with the policy and the defense was not applicable.

Fear of reporting supervisor reasonable? Triable issues also existed as to whether her failure to report her supervisor’s harassment to HR or the general counsel was reasonable. She claimed that she failed to do so because “she had witnessed firsthand” that another woman in the office had been blackballed after complaining and her supervisor also told her that it would be worse for her if she complained outside the office. Moreover, it was also questionable whether the anti-harassment policy was effective given the supervisor’s failure to address the coworker’s retaliatory conduct and his initial reactions to his sexual harassment, which included making jokes, ignoring or downplaying the problem, and suggesting the employee “go along” with it.

Retaliatory HWE. The employee also presented sufficient evidence that she engaged in protected activity when she complained to her supervisor about the coworker’s sexual harassment, who in response helped create a retaliatory HWE by doing “little to nothing” to stop his continuing pattern of retaliatory conduct and began harassing her himself. This retaliatory conduct began soon after she started complaining and continued over several months, and was accompanied by the supervisor’s statements that reporting the harassment outside the office would “make things worse.” Under such circumstances, a reasonable employee would be dissuaded from complaining.

Finally, the court rejected the employer’s statute of limitations argument since time limitations on a constructive discharge claim do not begin to run until the employee ends her employment and the employee testified that the coworker’s retaliatory harassment continued on a daily basis.

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