The case is Turley v. ISG Lackawanna, Inc., decided on December 17. Once the jury decides the plaintiff was subjected to severe or pervasive racial harassment, it is hard to challenge that finding on appeal, as the court defers to the jury's credibility findings. The best avenue for appeal is to argue that the trial judge made a mistake. The jury instructions are often the first place to look. But while the trial court has no discretion to get the instructions wrong, even a mistake in the jury charge will not get you a new trial unless it truly made a difference in the outcome, or was not "harmless error."
In this case, the employer says the jury was improperly charged on how to hold the employer liable. Generally, even the worst racial or sexual harassment will not win you the case without proving the employer was responsible for it. If the plaintiff complains about the harassment and management does not take the complaint seriously or ignores it altogether, then the plaintiff wins.
As the employer notes, "The court instructed the jury that when a non‐supervisory co‐worker creates a hostile work environment, the employer will be liable only if the plaintiff proves that his ʺ'supervisor or successively higher authority knew . . . or should have known . . . of the hostile or abusive work environment and permitted it to continue by failing to take remedial action.'ʺ The employer says this charge is wrong because it says the employer is liable if any single supervisor or higher authority failed to adequately respond on his own to the harassment. The Second Circuit says "If the defendantsʹ interpretation is correct, then this instruction would constitute legal error because the employerʹs response to harassment must be assessed as a whole and in light of the totality of the circumstances."
But not so fast. In context, the charge was correct. right before that language, the trial court told the jury,
[A]n employerʹs response need only be reasonable under the circumstances. . . . Whether an employerʹs response was reasonable has to be assessed from the totality of the circumstances . . . . Factors to be considered in determining whether the response was reasonable include – okay, weʹre talking about reasonable employer response – the gravity of the harm being inflicted upon the plaintiff, the nature of the employerʹs response in light of the employerʹs resources, and the nature of the work environment. An employerʹs response to co‐worker harassment is not unreasonable simply because it has not been successful in preventing further harassment.As this passage uses the phrase ʺemployerʹs responseʺ five and explicitly states that the jury must consider the totality of the circumstances and also employs phrases, such as ʺthe employerʹs resources,ʺ the Court of Appeals says this language "would make little sense unless the jury was being asked to consider the employerʹs response as a whole. " As a whole, the jury charge asked whether management's response, in its totality, was proper.