Tuesday, February 26, 2013

How to deal with sexual harassment

Even the most repulsive sexual harassment in the world will not create liability for the employer if it takes the harassment seriously and deals with the problem right away. That is what happened in a case against Hofstra University.

The case is Summa v. Hofstra University, decided on February 21. The plaintiff was a graduate student at Hofstra who also worked as the team manager for its football team, answering to the male assistant coach, John Perry. The football players acted like the proverbial brutes in their treatment of Summa, creating a Facebook page that lodged sexual and other insults against Summa and her boyfriend. Once Summa complained about this, the head football coach told the players to take down the page, which they did. Then on a bus ride with the team, the assistant coach put on an R-rated movie with sex scenes. The players reacted like junior high students, shouting out lewd vulgar comments to Summa, for whom this was the bus ride from hell. The assistant coach told the team to cut it out and then sat next to Summa. The worst offender on the bus was kicked off the team over this incident. The school then implemented sexual harassment training.

Even assuming there was a hostile work environment, that does not end the inquiry. One issue is whether the school is even obligated to rein in non-employees (such as the football team) in Title VII cases. The Second Circuit (Pooler, Raggi and Lynch) says for the first time that an employer may be liable for the harassment of non-employees in certain circumstances: "we will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.” More broadly, "In determining the appropriateness of an employer’s response, we look to whether the response was 'immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility [the employer] has with respect to [the employee’s] behavior.'” 

Under these standards, Summa loses the hostile work environment case. The college had a duty to protect plaintiff because it had control over the students. But it responded promptly and appropriately to the harassment. The Court says:

Each complaint that was brought directly to [the football coach's] attention was dealt with quickly and in proportion to the level of seriousness of the event. The fact that Cohen took action at once—completed within just days in all cases—speaks to the appropriateness of the University’s response in this case. Because defendants took the needed remedial action in this case, the harassment carried out by some players on the football team cannot be imputed to the University and its personnel. In addition to the prompt response to the particular incidents of harassment, upon the report of the movie incident to the school’s EEO officer—which took place after the offending player had already been expelled from the football team—the University had the entire Athletics staff undergo sexual harassment training before the start of the next football season. In addition to directly addressing the particular incidents of harassment of which it was aware, the University also took proactive steps to create a better environment for all employees in the future.
So, even though the football players acted like a bunch of jackwagons, the College did the right thing, and the hostile work environment claim under Title VII is dismissed. The same cannot be said for Summa's retaliation case, which survives summary judgment. That is a subject for a later post.

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