Two recent cases reached different results on the legal defense available to employers who take prompt remedial action in response to employee complaints of work place harassment. This legal defense is intended to encourage employers to promptly investigate and deal with alleged workplace harassment. See, e.g. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
In the first case, the Court rejected the sexual harassment claim of a former female employee of a Toyota Dealership because her employer promptly responded to her complaint. In Taylor v. Richardson Auto, d/b/a Toyota of Richardson, N.D. Tx, No. 3:05-cv-2397/D (7/6/07), the employer commenced an investigation of the employee’s harassment claim on the same day of the complaint, warned the alleged harasser not to contact her, and provided written assurances against any future retaliation. Under these circumstances, the employer was not legally responsible for alleged harassment by a co-worker.
The result was completely different, however, in Kurschinske v. Meadville Forging Co., W.D. Pa., No. 06-87 (6/21/07). In that case, a female employee complained about a male co-worker displaying pornography in the workplace, unwanted touching, and unwanted sexual comments, which she found offensive. The Court allowed her case to proceed to trial because a reasonable jury could conclude that the employer’s response was ineffective in stopping the unwanted conduct. The employer’s response consisted of an employee meeting during which everyone was told that workplace pornography was unacceptable and would not be tolerated. This did not, however, stop the unwanted conduct.
The two different results illustrate that at least one litmus test for avoiding legal responsibility for reported harassment may be whether the employer’s response was actually effective in stopping the unwanted conduct. If the employer’s response to a complaint actually stops the offending conduct, the most likely result is avoidence of legal responsibility for unauthorized conduct.