In order to prove a Title VII hostile work environment sexual harassment claim, a plaintiff is required to establish that the harassment was sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive working environment and that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.

When the harassment is done by a supervisor, the employer will in most circumstances be automatically liable for the illegal conduct. When the harassment is done by a co-worker, the employer is not automatically liable, and a plaintiff is required to prove that the employer knew about the harassment, or in the exercise of reasonable care should have known about the harassment, and failed to act promptly to stop it.

For example, in Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009), the Second Circuit Court of Appeals (federal court covering New York) addressed the question of whether a supervisor’s knowledge of co-worker sexual harassment could be imputed to the employer even though the supervisor was never specifically told of and did not witness any harassment.

In this case, the plaintiff notified her supervisor that she wanted to change her schedule to avoid working alone with a co-worker but neglected to tell her supervisor why she wanted the change. When the supervisor asked her if she had a problem with this co-worker, she became emotional and after gaining her composure said, “I can’t talk about it.” Her supervisor then replied, “that’s good because I don’t want to know what happened,” and laughed. Although he changed her schedule so she would not have to work alone with this co-worker, the harassment nonetheless continued and the plaintiff was forced to quit her job as a result.

The court found that there was sufficient evidence from which the jury could find that her supervisor knew, or should have known about the harassment because: 1) he knew that she asked for a change in her work schedule when she was scheduled to work alone with this co-worker, 2) he knew that the co-worker had engaged in sex-related misconduct toward females in the past, 3) he knew that the subject of working with this person caused the plaintiff to become emotional, teary and red, and lose her composure, 4) he said “good . . . I don’t want to know what happened” when the plaintiff said she didn’t want to talk about it, and 5) he agreed to change the plaintiff’s schedule so that she didn’t have to work with this co-worker alone.

Based upon the above, the Second Circuit held that a reasonable jury could conclude that the plaintiff’s employer had at least constructive knowledge of the sexual harassment directed at her. The court found that a jury could reasonably find that her supervisor strongly suspected that it was the sexual harassment on her co-worker’s part, which was responsible for the plaintiff’s emotional reaction, and that her supervisor understood that the issue was ongoing.

The plaintiff’s supervisor thus had a duty to make at least a minimal effort to discover whether this co-worker had engaged in sexual harassment, and encourage her to reveal the full extent and nature of the harassment. Unfortunately, instead of encouraging the plaintiff to discuss the problem, he discouraged her from revealing the full extent and nature of the harassment by stating that he did not want to know what happened.

The court made clear that an employer’s “purposeful ignorance” through its supervisors who have a duty to act on strong indications of harassment will not shield an employer from liability under Title VII. The court also concluded that a jury could find that the employer’s response was unreasonable. Although her supervisor adjusted the schedule so that the plaintiff and her harasser would not be working together alone, the harassment persisted and even escalated during the subsequent months. A formal investigation did not commence until three months later, and only after the plaintiff had informed another co-worker of the harassment.

This case helps to clarify what constitutes notification and the action that must be taken once the employer is informed of the harassment. Victims of harassment are often fearful of formally submitting a written complaint of harassment. This case shows that even informal and non-specific conversations can trigger an employer’s obligation to investigate and take appropriate action to stop the harassment.

It is thus so important to consult with a New York sexual harassment attorney if you feel that your employer is allowing sexual harassment to take place in the workplace, even if the harasser is only a co-worker.

© 2017 Law Office of Yuriy Moshes, P.C.


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