Co-Worker’s Harassment Not Imputed to Employer; Employer’s Response Held Sufficient

In Hill v. Frontier Telephone of Rochester, Inc., 2018 WL 1256220 (W.D.N.Y., 2018) – a race discrimination/hostile work environment case – the court dismissed plaintiff’s case, finding that there was no issue of fact as to whether the alleged harasser’s conduct could be imputed to the employer.

The court explained the law:

Where, as here, a coworker harasses the plaintiff, an employer can be directly liable for [that] employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it. …

Plaintiff must show that Defendant knew of the harassment and failed to act.

Applying the law, the court initially noted that it was undisputed  defendant has policies prohibiting harassment and providing avenues for complaints.

That did not end the matter, however:

Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be held liable if plaintiff can show that they knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action. This standard requires a plaintiff to show that (1) someone had actual or constructive knowledge of the harassment, (2) the knowledge of this individual can be imputed to the employer, and (3) the employer’s response, in light of that knowledge, was unreasonable.

In sum, after plaintiff’s co-worker used a term that included  a racial slur, plaintiff confronted the co-worker and then reported it to a supervisor. Defendant, inter alia, investigated plaintiff’s complaints, instructed the co-worker not to tell any more jokes, and provided training to its employees.

The facts did “not suggest that [defendant] failed to take appropriate remedial action in response to the … incidents.” Notably, the court held that “[p]laintiff’s belief that the sanctions against [the co-worker] were not harsh enough … does not create an issue of fact sufficient to overcome summary judgment,” citing case law for the proposition that, inter alia, “[a] victim of…harassment is entitled to a remedy reasonably calculated to end the harassment, but the victim is not entitled to choose her remedy and then argue that the employer’s response is unreasonable because she does not get what she wants.”

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