Should this employer have been able to predict future sexual harassment?

On August 16, 2019, an employee reported for the first time that a supervisor had made sexual comments to her that made her feel uncomfortable. The next day, management met with the alleged harasser about the allegations, and he resigned.

Problem solved, right?

Not exactly.

The employee, who would later become the plaintiff in this civil action, claimed that the employer (now the defendant) should have been on constructive notice of the harassment much earlier, based on other earlier incidents involving the alleged harasser and other employees. Thus, the plaintiff claimed that the defendant unlawfully failed to act sooner.

In December 2017, about six months before the plaintiff began work, another employee filed an EEOC complaint against the defendant and the plaintiff’s alleged harasser. In her complaint, the other employee said that the plaintiff’s alleged harasser had called her “babe” and told her she should wear high heels because she would look “more sexy.”

Then, in September 2018, another employee reported that the plaintiff’s alleged harasser had made racially derogatory comments toward her and another male employee. During the investigation, the company learned that the alleged harasser also made some sexual comments.

Later, in February 2019, another employee complained about the plaintiff’s alleged harasser. Believing the coworker had opened a package intended for him, the alleged harasser got angry and asked her, “What if it was a dildo or something?”

Finally, when the plaintiff filed her complaint in August 2019, two coworkers reported that the alleged harasser had not helped them when the floor became busy. He told them that they were adults and could figure it out.

The plaintiff alleged that these earlier incidents, taken together, placed the defendant on constructive notice of a campaign of harassment similar to what she endured, which it could not have failed to notice and take appropriate action.

The Tenth Circuit Court of Appeals, however, disagreed.

It reasoned that the December 2017 EEOC complaint was too distant, and the defendant otherwise addressed it. The origin of the September 2018 incident was claims of race discrimination and, thus, not sufficiently related to the plaintiff’s claims of sexual harassment. The company could not corroborate the February 2019 package incident. Finally, the other August 2019 incident merely indicated that the plaintiff’s alleged harasser was rude but did not show that he sexually harassed women.

Thus, the appellate court concluded that no reasonable jury would conclude that the defendant should have known that the plaintiff’s alleged harasser posed a risk of sexually harassing her before the plaintiff herself complained about him.

But, given the overall history, wouldn’t the defendant have to check in with female employees to ensure they were okay? No, the law doesn’t require it unless the employer knows or should have known that the employee poses a risk to others. Perhaps the defendant could have avoided this problem altogether had it done so or just ended the alleged harasser’s employment sooner.