Sunday, December 6, 2009

Supervisor's "purposeful ignorance" of sexual harassment may violate Title VII

What is an employer's obligation to rid the workplace of sexual harassment? And when can we presume that management even knew about a hostile work environment? In a ruling handed down last week, the Second Circuit held that a manager should have known that a female subordinate was a sexual harassment victim and that the district court should not have granted summary judgment to the employer.

The case is Duch v. Jakubek, issued on December 4. This case actually raises several issues surrounding employer knowledge of a hostile work environment and its obligation to clean up the workplace. While two managers knew that Duch was being harassed, one of them was actually excused for not taking remedial action. As the Second Circuit does not issue many rulings on the employer's liability for co-worker harassment, this is an important case.

Duch worked for the Office of Court Administration. She was harassed by Kohn. When Duch was assigned to work with Kohn, she asked her supervisor, Jakubek to change her schedule. Kohn told Jakubek that he may have done "something or said something that I should not have." When Jakubek spoke about this with Duch, she said she did not want to talk about it. Jakubek was fine with this. He told Duch that "I don't want to know what happened."

Duch more explicitly told the EEO liaison, Christiano, about the harassment. But Duch did not speak to Christiano about this in her role as EEO liaison; she spoke to Christiano as a friend. Duch told Christiano not to report Kohn's harassment, and Christiano did not report it.

While Christiano actually knew about the harassment and Jakubek had reason to know about it, no one reported it, and Duch deteriorated mentally. If Title VII requires management to take prompt remedial action to investigate and remedy sexual harassment, is OCA liable for the inaction of Jakubek and Christiano? The answer is No and Yes.

First, some underbrush. Management did provide Duch a reasonable avenue to complain about the harassment. Christiano may not have been the best EEO officer in the world (she did not go to the sexual harassment training and inappropriately suggested that Duch "grab and hurt" the harasser. But OCA had other avenues for complaint besides the EEO office, including the Inspector General, other supervisors and a Work Life Program representative. If Duch is going to win the case, it will not stem from OCA's lack of reasonable avenues for complaint.

She also cannot win on the basis of Christiano's failure to report the harassment. According to Christiano's unrefuted testimony, Duch told Christiano not to report it. The Second Circuit dealt with a similar issue in Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), which presumes that the victim's instruction that a supervisor not take action on the harassment will absolve the company of any Title VII liability. Although Torres says that "there is certainly a point at which harassment becomes so severe that a reasonable employer simply cannot stand by, even if requested to do so by a terrified employee," as Christiano was not aware of the extent of Duch's emotional harm, she did not drop the ball in keeping Duch's confidence.

It is Jakubek's inaction which may violate Title VII, entitling Duch to a trial. Supervisors have a duty to take affirmative steps to stop the harassment. He knew that Duch did not want to work with Kohn and that Kohn had engaged in sex-related misconduct toward women in the past. He also told Kohn to "grow up" in hearing from Kohn himself that he may have done something wrong. Jakubek also told Duch that he did not want to hear about her problems with Kohn. The Second Circuit (Cabranes, Leval and Hall) concludes, "Based on this aggregation of facts, a jury could reasonably find that Jakubek strongly suspected that it was sexual harassment on Kohn's part that was responsible for Duch's emotional reaction, that Jakubek knew the issue was ongoing" and that Jakubek had a duty to inquire further rather than to discourage Duch from revealing the full extent of the harassment. In other words, a supervisor's "purposeful ignorance of the nature of the problem ... will not shield an employer from liability under Title VII."

Jakubek's inaction means that OCA could lose the case at trial. Jakubek had reason to know of the harassment October 2001, when he spoke with Duch about her problems with Kohn. Although management got around to investigating the harassment in January 2002 (when Duch told someone else about it), that was too long after Jakubek's constructive knowledge of the hostile work environment.

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