Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics, including gender, race/color, gender identity, sexual orientation, national origin, religion, disability, and age. Hostile work environment harassment is deemed unlawful under Title VII and related statutes when the behavior is severe or pervasive, creating a work environment that a reasonable person would find hostile or abusive, and the affected employee perceives it as such. This legal framework aims to ensure workplaces are free from discrimination and harassment, fostering a conducive environment for all and employees.
When does the employer become liable for others creating a hostile work environment?
Employers are generally liable for a hostile work environment created by their employees when certain conditions are met. These conditions typically include:
- Direct Liability for Employer: An employer can be directly liable for hostile work environment if they were negligent in addressing the offensive behavior. Negligence is established if there is evidence to show that the employer knew or should have known about the harassment but failed to take appropriate action to stop it.
- Vicarious Liability for Supervisor’s Conduct: If the harasser is a supervisor and their harassment results in a tangible employment action (such as demotion, termination, etc.), the employer is strictly liable for discrimination or harassment, with no defense.
- Vicarious Liability for Non-Tangible Employment Action or Co-Worker Harassment: If no tangible employment action occurs or if the harasser is a co-worker, the employer may still be vicariously liable for the harassment if the employee proves it was severe or pervasive. In such cases, the employer can defend itself by demonstrating it took reasonable steps to prevent and promptly correct any harassing behavior, as outlined in the affirmative defense established in the United States Supreme Court cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton.
In summary, employers can be held liable for hostile work environment sexual harassment both directly through negligence and vicariously based on the actions of supervisors or co-workers, depending on the circumstances and the severity of the harassment.
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How can employers defend a hostile work environment claim?
The Faragher/Ellerth defense provides a framework for employers to potentially avoid liability for hostile work environment sexual harassment under Title VII. To successfully invoke this defense, employers must satisfy two key elements:
- Reasonable Care to Prevent and Correct Harassment: Employers must demonstrate that they exercised reasonable care to prevent and promptly correct any sexually harassing behavior. This can be achieved by adopting valid sexual harassment policies, distributing them to employees, requiring acknowledgment of understanding from employees, and providing training to managers. However, merely having policies in place is insufficient; employers must also take prompt and appropriate action to address harassment if it occurs.
- Plaintiff’s Unreasonable Failure to Take Advantage of Preventive or Corrective Opportunities: Employers can argue that the victimized employee unreasonably failed to report incidents of sexual harassment in a timely manner. The burden is on the employer to show that any delay in reporting was unreasonable. Courts have held that subjective fears of unpleasantness or retaliation do not excuse the employee’s reporting requirement, as Title VII encourages prompt action by both employers and employees.
To prevail with the Ellerth/Faragher defense, an employer must prove both elements by a preponderance of the evidence. This means providing credible evidence that would justify a directed verdict if unchallenged at trial. To win on a motion for summary judgement (having the case dismissed before trial), employers must demonstrate the absence of any material disputed facts and show that it was unreasonable for the victimized employee not to report the harassment or utilize complaint opportunities.
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So, why is it important to timely report a hostile work environment, discrimination, or harassment?
Let’s use the recent United States Court of Appeals for the Tenth Circuit case, Moon v. Oklahoma Department Of Corrections, as an example. No. 23-6091, 2024 WL 1696791 (10th Cir. Apr. 19, 2024).
Courtney Brooke Moon worked as a case manager at the ODOC’s Lexington Assessment and Reception Center starting in June 2017.
On September 11, 2020, Moon found herself in a pivotal meeting with supervisors Jason Bryant and Travis Gray. According to the supervisors, Moon didn’t bring up any allegations of sexual harassment involving a coworker, Shaun Tabon. However, in stark contrast, Moon asserted during her deposition that she did indeed report the harassment during that meeting. Adding fuel to the fire, she claimed that later that very same day, Tabon invaded her personal space, thrusting his hands down the front of her blouse and subjecting her to unwelcome advances. The next business day, September 14, 2020, and Moon tendered her resignation from ODOC. However, in a curious twist, her resignation letter omitted any mention of Tabon or the alleged sexual harassment. Based on this, Moon sued for sexual harassment hostile work environment and wrongful termination.
During the litigation, discovery revealed that shortly after starting at ODOC, Moon and Tabon, both Case Manager IIIs, began engaging in behavior of a sexual nature, including exchanging messages with sexual content and physical interactions during work breaks. While Tabon insisted these interactions were consensual, Moon contended during her deposition testimony such actions constituted sexual harassment. Despite being provided with policies for reporting such behavior, Moon didn’t utilize them. On September 4, 2020, she reached out to her supervisor regarding work-related issues, fearing that she was being wrongly perceived as underperforming, but neither the Moon’s email reaching out nor her follow up conversation mention Tabon’s alleged harassment.
Now, given Moon’s failure to include the allegations of sexual harassment as a reason for leaving in her resignation and prior communications with her manager as well as the documented mutual sexual messaging, it could be easy to jump to the conclusion that Moon simply made up these charges after quitting. However, remember that no matter how strongly judges may believe one party or the other, judges cannot weigh credibility nor decide the case on who they believe.
With that said, Judges can still dismiss the case on other legal grounds, which is what the Tenth Circuit Court of Appeals did in Moon – holding that the ODOC’s Ellerth/Faragher defense barred Moon’s hostile work environment claim.
The Tenth Circuit Court of Appeals held that the ODOC effectively met both prongs of the Ellerth/Faragher defense. Firstly, it provided Moon with comprehensive sexual harassment policies, fulfilling its duty to implement preventative measures. Despite Moon’s contention that the ODOC failed to promptly address the reported harassment, the Tenth Circuit Court of Appeals noted that the ODOC was not afforded the opportunity to take corrective action before Moon’s abrupt resignation the day after she reported the harassment. Secondly, the Tenth Circuit determined that Moon did not reasonably avail herself of the preventative measures provided. Despite her claim of reporting the harassment on September 11, 2020, the court deemed her delay in reporting for several years, driven by fear of retaliation, unreasonable. Thus, even if the ODOC received notice, it lacked the chance to address the issue due to Moon’s swift resignation.
In assessing the adequacy of the ODOC’s response, the Tenth Circuit emphasized that instantaneous investigation upon Moon’s allegations was not required of the supervisors involved. Instead, the ODOC was obligated to demonstrate reasonable promptness in addressing her complaints upon receiving proper notice. However, given Moon’s sudden resignation just one working day post-reporting, the ODOC had no opportunity to take corrective action. Specifically, the Tenth Circuit held:
Bryant and Gray were not required to launch an investigation from the moment Ms. Moon mentioned sexual harassment, as she seems to contend. Instead, “in order to establish that it took proper action to correct harassment, [the ODOC] was required to show that it acted reasonably promptly on [Ms. Moon’s] complaint when it was given proper notice of her allegations.” Helm, 656 F.3d at 1290 (internal quotation marks omitted) (emphasis added). But because Ms. Moon submitted her letter of resignation just one working day after the meeting, the ODOC did not have an opportunity to take any corrective action.
Id. at *5.
Therefore, the Tenth Circuit concluded that no reasonable jury could find the ODOC failed to act reasonably under the circumstances, even if there were uncertainties regarding the adequacy of Moon’s notice.
Thus, timely reporting of a hostile work environment is critical because it allows employers to promptly address and rectify instances of harassment, preventing further harm to the victim and potentially deterring future misconduct. In Moon’s case, had she reported the alleged harassment promptly, the ODOC would have had the opportunity to investigate her claims and take appropriate corrective action in line with their sexual harassment policies. This could have included measures to ensure Moon’s safety and well-being in the workplace, as well as disciplinary actions against the alleged harasser if warranted. Additionally, timely reporting would have provided a clearer timeline of events and allowed for a more comprehensive assessment of the situation, potentially strengthening Moon’s case by providing corroborating evidence and ensuring a more effective response from the employer. However, her delayed reporting limited the ODOC’s ability to intervene and address the situation before her resignation, ultimately impacting the outcome of her case.
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