Holding Your Employer Liable for Sexual Harassment, Even if Your Harasser Stopped Before You Reported It

The law against workplace sexual harassment derives from the public policy that strongly condemns such behavior. The law that allows a harassment victim to hold her employer liable for coworker harassment similarly condemns harassment and requires employers to develop responses that likewise demonstrate the employer’s stringent opposition to workplace sexual harassment. If your employer did not respond appropriately, then you may be entitled to hold it liable, even if your harasser stopped of his own accord. A harasser stopping on his own is rare, but does happen and, when it does, it represents a significant wrinkle and potential complication for your case. It does, however, doom your case. Consult with a knowledgeable New York sexual harassment lawyer to learn what options the law has for you.

A.P. was one of those workers caught in that type of scenario. Working as an intern for a division of the U.S. Department of Defense at an office upstate in 2019 and 2020, she encountered a male coworker who allegedly engaged in multiple acts of sexual harassment.

The harassment alleged was very overt and was of the sort that will ring all too familiar to many working women. According to the complaint, the man sent the woman numerous messages on Facebook Messenger describing things like his being naked and self-pleasuring while working from home, having sex dreams about the woman, and becoming aroused thinking about her. He told her about his desire to look up her dress t work, he sent the woman a picture of his genitals, he asked her about her favorite sexual positions, and he inquired about whether or not she wore underwear, the woman alleged.

In September, the woman allegedly experienced a “stress-induced seizure” due to the harassment. She went on unpaid leave in mid-October.

In November, the woman contacted her employer’s human resources department about the alleged harassment. By February, the employer stated its intent to transfer the woman to a different position in a different building but instead transferred her to a new department where she worked even closer to the alleged harasser than before, the lawsuit alleged.

According to the woman’s complaint, the man was never “meaningfully reprimanded nor was any action taken to prevent him from harassing other employees.”

The law says that to hold your employer liable for sexual harassment perpetrated by a coworker (as opposed to a supervisor,) you must prove that your employer “failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” The potential problem for this woman was that the alleged harassment ended when she went on unpaid leave in October, an event that occurred several weeks before she contacted HR.

The employer, as a result, argued that, regardless of the adequacy or inadequacy of its response, this timeline necessarily meant that the woman had no case.

Employers Must Strive to Prevent Future Harassment, Even if It Isn’t Still Occurring

The central issue in dispute, as the court reasoned, was: “If an employer learns of harassment and fails to take adequate remedial action, but no subsequent harassment occurs, can liability be imputed to the employer?”

The court determined that, yes, an employer can be liable, even if no subsequent harassment takes place. The court pointed out previous federal court decisions that had reached similar conclusions. In 1995, the 9th Circuit said that “Title VII does not permit employers to stand idly by once they learn that sexual harassment has occurred,” even in situations where the harasser “voluntarily elects to cease.” The 3d and 7th Circuits, in addressing the issue, highlighted employers’ obligations to engage in responses that are “reasonably calculated to prevent further harassment,” regardless of whether or not the harasser’s harassment of the plaintiff was ongoing.

That standard meant that the intern could go forward with her case. The Department of Defense did not even attempt to justify the adequacy of its response to the report of alleged harassment. As a result, the court denied the motion.

Women face many challenges at work. One they should not have to overcome, but too often do, is sexual harassment — whether from supervisors, coworkers, or non-employees. If it has happened to you and has impeded you at work, then you should investigate your options. The skilled New York sexual harassment attorneys at Phillips & Associates are dedicated to providing clients with the knowledgeable advice and the zealous advocacy they need to achieve the best possible outcomes. To find out more, contact us online or at (866) 377-5015 to set up a free and confidential consultation today.

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