Sexual Harassment Jury Verdict Upheld; Co-Worker’s Sexual Harassment Imputable to Employer

In MacCluskey v. University of Connecticut Health Center, 2017 WL 6463200 (2d Cir. Dec. 19, 2017) (Summary Order), the Second Circuit affirmed the lower court’s judgment following a jury verdict in favor of plaintiff on her sexual harassment (hostile work environment) claim under Title VII of the Civil Rights Act of 1964.

The court framed the issue as follows:

It is undisputed at this juncture that MacCluskey was subjected to actionable sexual harassment by a co-worker, Dr. Michael Young, who was not her supervisor. The principal question on appeal is whether a sufficient basis existed for imputing the offending conduct to UCHC as the employer, a question that turns on whether UCHC knew, or in the exercise of reasonable care should have known, about the harassment but failed to take appropriate action.

After reviewing the relevant law, the court held that Young’s conduct could, indeed, be imputed to plaintiff’s employer.

Here is a summary of the relevant law applicable to a “co-worker harassment” scenario:

To prevail on a hostile work environment claim, a plaintiff must prove that (1) the “workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment,” and (2) “a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (citations omitted). This appeal concerns only the second element.
Where, as here, a hostile work environment claim involves conduct by a co-worker, rather than by a supervisor, the employer is only liable for its own failure to exercise reasonable care to address the harassment. Duch, 588 F.3d at 762. Accordingly, the test is whether (1) the employer “failed to provide a reasonable avenue for complaint” or (2) “it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.”

Since it was undisputed that the employer provided a reasonable avenue for complaint and that plaintiff did not report her co-worker’s conduct prior to 2011, the court addressed the question of “whether UCHC had constructive notice of the harassment, that is, whether it should have known about the harassment in the exercise of reasonable care.”

Applying the law, the Second Circuit “agree[d] with the district court that there was sufficient evidence for a reasonable jury to find that, in the exercise of reasonable care, UCHC should have known about Young’s harassment.”

Specifically, the court explained:

[A] reasonable jury could have found the following:

  • After Young had sexually harassed another assistant in 2000, he was disciplined and subjected to the last chance agreement.
  • Young’s supervisors, including Gendell, should have been made aware of the last chance agreement, but they were not.
  • Young’s supervisors should have been monitoring him, especially given the isolated and close working environment.
  • From 2009 through 2011, Young made inappropriate comments regarding MacCluskey’s appearance, inquired about her personal life, and invaded her personal space.
  • At some time between 2009 and 2010, MacCluskey complained of Young’s behavior to two co-workers.
  • Gendell was alerted to a possible issue involving MacCluskey in the dental clinic, to the extent that she asked her about the “situation”; she did so, however, in a hallway, rather than a private setting, and did not ask follow-up questions or raise the issue again; indeed, she took no further action.

Collectively, these facts provided a sufficient basis for a reasonable jury to determine that in the exercise of reasonable care, UCHC should have known about Young’s harassment in 2009 or 2010. 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 UCHC became aware there was a “situation.”

The facts that the employer had a sexual harassment policy, and that plaintiff knew about the policy but failed to make a complaint for two years, were not dispositive under the so-called Faragher/Ellerth defense.

First, that defense applies to harassment by a supervisor, as opposed to a co-worker. Second, even if the defense applied, “the existence of an anti-harassment policy is not dispositive on the issue of whether the employer exercised reasonable care to prevent and correct harassing behavior” and “[e]ven where an employer provides a reasonable avenue for complaint, it may be liable if it knew or should have known about the harassment and failed to take appropriate action.”

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