The "situation" put defendant on constructive notice of sexual harassment

I don't think the Second Circuit has issued a major sexual harassment ruling this year. This case comes closest, but it's a summary order with limited precedential value. Still, its an interesting ruling that covers employer liability for co-worker sexual harassment.

The case is MacCluskey v. University of Connecticut Health Center, issued on December 19. Plaintiff was a dental assistant. In 2008, she began working with a dentist, Dr. Young, who was disciplined for sexually harassment in 2000 and given a "last chance agreement" that ordered him to see a psychiatrist and said any further unwanted sexual behavior could result in his termination. After Dr. Young made unwanted sexual advances on plaintiff, she told two co-workers who in turn told a supervisor, Gendell, who then asked plaintiff about this "situation." Plaintiff said there was in fact a "situation" but said she had it under control. Gendell did not know about the last-chance agreement. Later on, Dr. Young again sexually harassed plaintiff, this time putting his hand up her shirt. After management investigated, Dr. Young resigned to avoid termination.

The case went to trial and the jury awarded plaintiff $200,000. The judge reduced it to $125,000. The Court of Appeals (Parker, Lynch and Chin) upholds the verdict, reasoning as follows:

While the employer took immediate action once it found out about the second round of sexual harassment against plaintiff, defendant did not exercise reasonable care to prevent the harassment because it had constructive notice of the harassment, "that is, it should have known about the harassment in the exercise of reasonable care." Plaintiff's supervisors should have known about the last-chance agreement. Their lack of knowledge of the agreement was negligent on defendant's part. Management should have been monitoring Dr. Young to ensure he did not violate that agreement, particularly since he was working closely with plaintiff. When plaintiff complained about the "situation," Gendell should have taken that information seriously and asked follow-up questions. His failure to do so supports the liability verdict.

The Court adds, "There was enough notice that Gendell was prompted to inquire, and instead of asking an informal question in a hallway, she should have conducted a deeper inquiry. Moreover, she should have known about Young's earlier conduct and the last chance agreement, and that knowledge surely would have provided reason for a more probing inquiry" when defendant "became aware there was a 'situation.'"