Manager’s Observation of Harassment Places Liability on Employer
Under generally accepted Title VII principles, an employer can be held liable when a co-worker harasses a co-worker if a supervisor is aware of the harassment, but fails to take prompt corrective action. This principle was reiterated in EEOC v. Driven Fence, Inc., where an African American Plaintiff quit his job after being subjected to various racially derogatory remarks and being asked to put his head in a noose hanging from the ceiling. Although the misconduct was the acts of non-supervisory staff, the Court ruled the manager, who saw the noose, had “a duty to pass on the information to someone within the company who ha[d] the power to do something about it….” Because the manager failed to report the conduct as required by the employer’s policies and case law, the Court denied summary judgment.
This decision serves as a significant reminder that employers must train their managers regarding their obligations to report potentially discriminatory/harassing conduct under both the employer’s policies, as well as applicable law. Managers, in turn, must be mindful to be vigilant and observe and report any potential discriminatory or harassing conduct. Failure to do so can create liability to the employer simply because the manager failed to report.