Employer Liable for Coworker Sexual Harassment Based on Supervisor's Constructive Knowledge
Tackling the question of employer liability for complaints of coworker sexual harassment, the U.S. Court of Appeals for the Second Circuit held in Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009) that a supervisor's purposeful ignorance of the nature and extent of harassing behavior does not shield an employer from liability under Title VII of the Civil Rights Act of 1964.
On August 12, 1999, Karen Duch's employer, the New York State Office of Court Administration (OCA), assigned her to serve as a court officer in the Midtown Community Court (MCC). Duch was one of twelve court officers assigned to the MCC, all of whom reported to Lieutenant Edward Jakubek, the highest ranking court officer at MCC. Almost two years later, in May 2001, Brian Kohn was assigned to the MCC. Kohn was the same rank as Duch and also reported to Jakubek.
On September 25, 2001, Kohn and Duch engaged in a consensual sexual encounter at Duch's apartment. The next day, Duch told Kohn that the encounter had been a mistake and that she did not want to pursue a relationship with Kohn. After the encounter, and until January 2002, Kohn made a series of sexual advances towards Duch, continuing to harass her with unwanted physical contact, sexually graphic commentary, and physical gestures.
Upon learning that she was scheduled to work alone with Kohn in October 2001, Duch approached Jakubek and asked for the day off without explaining the reason for her request. Later that day, however, Jakubek called Duch back into his office and said that he heard she wanted to change her schedule to avoid working with Kohn. Jakubek explained that he had spoken with Kohn, who had admitted to inappropriate behavior, and told Kohn to "cut it out" and "grow up." When Jakubek asked Duch if she had a problem working with Kohn, an emotional Duch responded "I can't talk about it." Jakubek then offered to change the schedule to ensure that Duch would not have to work alone with Kohn.
Later in October 2001, Duch spoke with the MCC's EEO liaison, court officer Rosemary Christiano, about Kohn's harassment-the first of many conversations on the subject. During their initial conversation Christiano asked Duch if she was speaking to her in a professional capacity or as a friend, to which Duch replied "I think I'm telling you as a friend." Duch subsequently told Christiano that she did not want Christiano to report Kohn's conduct, and Christiano complied with Duch's wishes.
Over the next two months, Kohn continued to harass Duch. Eventually, Duch became seriously ill, stopped eating, and began avoiding work. A few days after court officer David Joseph replaced Christiano as the MCC EEO liaison in December 2001, Duch approached Joseph and informed him that she wanted to file a formal complaint about Kohn's conduct. On January 11, 2002, Duch officially filed a formal claim of discriminatory treatment. Disciplinary charges were brought against Kohn as a result of the subsequent investigation. The charges were later dropped, however, when Duch failed to submit to cross-examination. In December 2002, Duch ceased working for the court system.
On January 7, 2004, Duch filed a sexual harassment lawsuit against Kohn, Jakubek, OCA, and the state of New York in the U.S. District Court for the Southern District of New York alleging violations of Title VII and analogous provisions of New York State and New York City law. The district court granted summary judgment in favor of Jakubek, OCA, and the state of New York, holding that (1) OCA had provided a reasonable avenue for Duch to complain about the alleged harassment; (2) no reasonable jury could conclude that Jakubek, OCA, or the state of New York had knowledge of the alleged harassment; and (3) even if they had knowledge of the alleged harassment, their response was reasonable. Consequently, the district court dismissed Duch's claims. Duch appealed.
On appeal, the Second Circuit observed as a threshold matter that an employer will only be liable for coworker harassment where the employer either (1) fails to provide a reasonable avenue for complaint; or (2) knew or should have known of the harassment, and agreed with the district court's determination that Duch did not prove the absence of a reasonable complaint mechanism. The court acknowledged that although Christiano's failure to follow up on Duch's complaints had effectively blocked a particular avenue of complaint, OCA offered alternative means for registering a harassment grievance that Duch did not employ. According to the court, an employer is liable for coworker harassment if it provided no reasonable avenue for registering a complaint.
Nevertheless, the court concluded that OCA could still be liable for Kohn's harassment if the employer or the employer's agent "knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." Applying that standard, the court held that although Christiano had actual knowledge of Duch's complaints of harassment, her failure to act was reasonable in light of Duch's request that she not report the complaints. The court explained that while some complaints of harassment may be so severe as to compel an employer to disregard an employee's request to keep the complaint confidential, Duch's complaints did not rise to that level of severity.
Turning its gaze to Jakubek, the court held that there was sufficient evidence from which a jury could determine that he had constructive knowledge of Duch's complaints of harassment. Specifically, the court noted that Jakubek knew Duch did not want to work with Kohn, that Kohn had engaged in sexually charged misconduct in the past, and that Duch's problems with Kohn were ongoing at the time she sought to change her schedule. Based on that knowledge, the court held that the indications of sexual misconduct were strong enough that Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment. Instead, Jakubek discouraged Duch from revealing the full extent and nature of complaints.
The court concluded that Jakubek could be charged with constructive knowledge of Duch's complaints, which could be imputed to OCA due to Jakubek's supervisory status. The court further held that because the OCA's investigation did not commence until three months after Jakubek learned of the complaints, a jury could conclude that OCA's response was not "effectively remedial and prompt" as required by Title VII. Consequently, the court remanded the case to the district court for a trial on Duch's harassment claims.
Employer Notes: Duch underscores the need for employers to recognize that even informal and nonspecific conversations can trigger an obligation to investigate potential harassment. Supervisory personnel should be trained to recognize and report any and all complaints that might be indicative of harassing behavior in the workplace-no matter how informal or vague-to those responsible for investigating and remedying such behavior. Similarly, those individuals must be trained to take all such complaints seriously and to deal with them promptly. As Duch demonstrates, failure to do so can expose employers to significant liability.
Moreover, while the Duch court found on the particular facts of this case that it was reasonable for Christiano to honor the plaintiff's request that her complaint not be brought to the attention of higher management, generally speaking this is a bad idea. Ordinarily, and especially if the allegations of harassment appear potentially plausible and involve something more than an isolated encounter, employee complaints must be reported, investigated, and resolved. An employer can promise that the matter will be kept confidential to the greatest extent possible under the circumstances, but honoring a complainant's request to "keep the matter between us" is in most cases a recipe for disaster.
This article was orginally written for HR Spotlight.com www.hrspotlight.com