Prompt Remedial Action Shields Companies From Liability From Sexual Harassment Allegations Lodged Against Co-Workers

This article addresses the legal standards of evaluating non-supervisory co-worker sexual harassment in the workplace. A “to do” list is provided below of the actions a Company should take to shield itself from liability.

To establish a case of sexual harassment by non-supervisory co-workers based on a hostile work environment, a plaintiff “must establish all of the following; 1) membership in a protected group, 2) the occurrence of unwelcome harassment, 3) a causal nexus between the harassment and her membership in the protected group, 4) the harassment affected a term condition, or privilege of employment, and 5) the employer knew or should have known of the harassment and failed to take prompt remedial actions.” Jacob-Mua v. Veneman, 289 F.3d 517, 520 (8th Cir. 2002).

With respect to the fourth element of the case, the Eighth Circuit, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, has established a high standard for actionable discrimination. Employees are subject to sexual harassment when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment”. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The conduct must be “extreme and not merely rude or unpleasant”. Bowen v. Mo. Dep’t of Soc. Servs., 311 F.3d 878, 883 (8th Cir. 2002). Isolated instances (unless extremely serious) do not amount to enough to prove discriminative activity. The circumstances are evaluated as a whole, and not just the initial episode. Courts look at the “frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferes with the employee’s work performance.” Harris at 23. These standards are designed to “filter out complaints attacking the ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes and occasional teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

To shield themselves from liability, Companies must be able to prove that once they knew of the actionable harassment, they took prompt remedial action. Courts consider several factors in assessing the reasonableness of a Company’s remedial measures: the temporal proximity between the notice and remedial action, the disciplinary or preventive measures taken, and whether the measures ended the harassment. Stuart v. Gen. Motors Corp., 217 F.3d 621 (8th Cir. 2000).

In Meriwether v. Caraustar Packaging Company, 326 F.3d 990 (8th Cir, 2003), the plaintiff argued that a co-workers “sexual physical aggression accompanied by later intimidation” constituted hostile work environment sexual harassment and that the Company’s response to her complaint was insufficient under law. The 8th Circuit denied her claims and found that the two incidents of harassment alleged were not severe enough to constitute actionable harassment and that the Company had effectively shielded itself from liability by its response. Accordingly, Meriwether could not establish her case, because she failed to establish the fourth and fifth elements outlined above.

Meriwether worked for Caraustar as a feeder-catcher on the second shift. On February 21, 2001, a co-worker grabbed her “buttock” and Meriwether punched the co-worker and yelled at him. The next day the co-worker stopped Meriwether to joke about the incident and blocked her passage. Meriwether promptly reported the incident to Management on February 23, 2001. She stayed away from work for five days and upon her return to work requested a shift change. The request was granted.

In response to Meriwether’s complaint, Caraustar immediately investigated the complaint. The co-worker was first suspended for two days and, within one week, at the conclusion of the investigation, was suspended for an additional five days. The co-worker was required to review the company’s harassment policy and to attend training concerning harassment. Additionally, Caraustar warned the co-worker he would be terminated if he received another harassment complaint or interacted with Meriwether outside of his job assignment. Meriwether suffered no additional harassment.

The Court found that the “lone grabbing incident and subsequent encounter did not rise to the level of severe or pervasive conduct to alter the conditions of Meriwether’s employment and create an abusive working environment”. Id. At 993. Additionally, the Court held that the Company’s actions were prompt and effective as a matter of law.

Companies cannot hope to eliminate all incidents of sexual harassment from the workplace. Companies can, however, control and minimize their liability by following the example of the Caraustar employer.