The recent Eighth Circuit Court of Appeals decision in Cross v. Prairie Meadows Racetrack and Casino Inc., No. 09-3427 (8th Cir. Aug. 12, 2010), again emphasizes to plaintiffs bringing sexual harassment claims against their employers that “[t]he standard for demonstrating a hostile work environment on the basis of sexual harassment is a demanding one.” The court affirmed the dismissal of a parking valet’s hostile work environment claims related to alleged sexual harassment by a co-worker, concluding that the employee, who reported four incidents of sexual harassment over two years but did not pursue other avenues of reporting the alleged misconduct when she received no response on her complaints, did not rise to the level of severe or pervasive to establish such claims.

Throughout plaintiff Lisa Cross’s employment, Prairie Meadows had an anti-harassment policy that provided that employees who felt they had been subjected to harassment should report such misconduct to their supervisors. The policy further stated that if an employee was dissatisfied with the resolution of a complaint, the employee could elevate the claims to upper management. In addition, the policy placed an affirmative duty on supervisors to report any instances of harassment to human resources.

Cross reported four discrete incidences of inappropriate conduct by another valet attendant to her supervisor. On the first occasion, Cross alleged that the co-worker grabbed her by her ponytail and pulled her out of the valet shack. On the second occasion, Cross alleged that the co-worker brushed his hand across her breast while acting to wipe something off her shirt. On the third occasion, Cross alleged that the co-worker blocked her with his car in the parking lot, asked her if she liked him and then responded angrily when she said she only liked him as a friend. Finally, Cross alleged that the co-worker spread a rumor that Cross had performed oral sex on him. On each of the first three occasions, the plaintiff’s supervisor investigated the allegation and reprimanded the co-worker where necessary. Upon the final incident, the supervisor submitted the issue to human resources for investigation and the co-worker was eventually terminated. The Eighth Circuit held that “[t]aken together, these four incidents [sic] over Cross’s two-year period of employment are insufficient to establish that the work environment was so permeated with discriminatory conduct that it altered a term, condition, or privilege of her employment.”

Significantly, the Eighth Circuit further noted that, even if the reported misconduct had risen to the level of creating a hostile work environment, Cross could not show that Prairie Meadows failed to respond adequately to her complaints. The court held that “the obligations of an employer under Title VII are not defined by the strictures of its own policy on harassment” and that “[e]mployers are free to draft harassment policies that are more stringent than Title VII, and they should be permitted to do so without fear that they will incur liability as a result of their efforts.” Further, the court emphasized that “[a]n employee has a duty to take reasonable steps to prevent harassment and mitigate harm.” When there are multiple effective avenues for reporting misconduct, “a reasonable person, realizing that her [initial] complaints were ineffective, would then seek a remedy elsewhere.” However, Cross failed to take advantage of those alternatives.

This decision serves to again remind employers of the importance of maintaining well-written anti-harassment policies to defend against harassment claims. Contact Larkin Hoffman’s experienced Labor and Employment Law attorneys if you have questions regarding your company’s anti-harassment policies.