Recently, the Fifth Circuit Court of Appeals decided whether a trial court had erroneously granted summary judgment in favor of an employer in a Title VII sexual harassment claim. At issue in Pullen v. Caddo Parish School Board was whether the employer, simply by having a harassment policy, had done enough to prevent claims.

Making allegations

A clerical employee in a school alleged that her supervisor had verbally and physically harassed her. She never complained to the school board. However, another clerical worker made a complaint involving the same supervisor and referenced the first employee as a person who could have been subjected to similar conduct. The first employee then filed a suit against the school board.

The alleged harasser remained the employee’s supervisor for a period of time until she was transferred to a different department. According to the employee, the harassment continued even after she was transferred.

Applying two legal standards

Both parties moved for summary judgment. The trial court analyzed the claim under two different legal standards: one for the period of time when the alleged harasser was the plaintiff’s supervisor, and one for when he wasn’t.

For the first time period, the trial court applied the Ellerth/Faragher defense. Such a defense would allow an employer to not be held strictly liable for a supervisor’s harassment if the harassment didn’t result in a tangible employment action and the employer could establish two things:

1. It exercised reasonable care to prevent and promptly correct any harassing behavior.
2. The plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid any harm.

The court concluded that the employer had maintained a sexual harassment policy and provided harassment training, so there were no material factual issues.

As for the second time period, the trial court decided that the employee hadn’t set forth any evidence to show that her employer knew or should have known about the harassment. The court cited the fact that she hadn’t filed a claim until two years after the conduct occurred.

Reviewing the court’s decision

The Fifth Circuit reversed for the period during which the alleged harasser was the plaintiff’s supervisor, but affirmed for the period during which he wasn’t. The appeals court held that disputes existed as to whether the employee was aware of the policy so that she could take advantage of it and whether the employer exercised reasonable care in preventing harassment. The employee stated that she could produce other clerical employees as witnesses. They could testify that they weren’t informed of the policy and weren’t advised about whom to contact regarding harassment complaints. The employee alleged that these witnesses would also testify that they hadn’t received sexual harassment training. Even though the school board provided evidence to the contrary, the court held that there were genuine issues of fact.

The court applied a different standard for the period of time when the alleged harasser was no longer the employee’s supervisor: An employer would be vicariously liable for sexual harassment by a co-worker if the employee could establish that the employer knew or should have known of the harassment and failed to take prompt remedial action. The employee in this case had conceded that the school board didn’t have actual notice until she reported it two years later. Thus, because she hadn’t established that the school board knew or should have known of the harassment, the court affirmed the district court’s grant of summary judgment for that time period.

Taking action

Employers should know that having an antiharassment policy alone isn’t effective in rebuffing sexual harassment claims. The policy must be provided to all employees and clearly explained to them so that they are aware of what isn’t permitted and have a reasonable avenue for complaint.

© 2016