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Court Revives Third-Party Harassment Claim

By R. Todd Creer  5/30/2014

An employer may be liable for a hostile work environment where one of its supervisors has knowledge or should have knowledge of ongoing harassment, but fails to act promptly to end the harassment, according to the 4th U.S. Circuit Court of Appeals.

Lori Freeman, a black woman, worked as a customer service representative for Dal-Tile Corp.  Freeman interacted on an almost daily basis with an independent sales representative who frequently made lewd and racially inappropriate comments both to and about Freeman. Some of the independent sales representative’s behavior included discussing his sexual encounters with women, showing naked pictures of women to Freeman, frequently using the term “b----” in the presence of Freeman, including calling Freeman a “black b----” on one occasion, passing gas on Freeman’s cellphone, and telling Freeman that he was “as f---ed up as a “n----r’s checkbook.” 

Freeman’s female supervisor witnessed the sales representative’s use of the phrase “black b----” in Freeman’s presence. When Freeman complained about the comment, her supervisor replied, “[H]e’s an a**hole, but I don’t think he will do it again.” Freeman also reported the aforementioned checkbook comment to her supervisor and the fact that the independent sales representative referred to Freeman as a “black b----” on another occasion. When Freeman made those complaints, her supervisor simply scoffed and shook her head or rolled her eyes.

Approximately three years after the alleged, ongoing harassment began, Freeman reported the sale representative’s behavior to her employer’s human resources department. The human resources representative initially promised Freeman that the sales representative would be permanently banned from the facility; however, the ban was subsequently lifted.  Instead, the employer prohibited the sales representative from speaking with Freeman and required him to coordinate his on-site meetings through Freeman’s supervisor. Freeman eventually filed a lawsuit.

In examining Freeman’s claims, the district court granted the employer’s motion for summary judgment, finding insufficient evidence that the alleged harassment was severe or pervasive and that the employer could not be held liable because it did not have actual or constructive knowledge of the harassment and its response was appropriate. On appeal, the 4th Circuit disagreed with the district court and remanded the case to the district court for further proceedings.

In reversing summary judgment, the appeals court reviewed the alleged behavior and held that the sales representative’s conduct could form the basis for sex- and/or race-based harassment that was both subjectively and objectively severe or pervasive. The appeals court further found the employer, through its supervisory agent, had actual, or at least constructive, knowledge of the conduct Freeman found offensive.  Despite the supervisor’s knowledge of the ongoing behavior, the appeals court noted that the employer did not take any action to stop the harassment until Freeman eventually went to the human resources department. To avoid liability under Title VII of the 1964 Civil Rights Act for third parties creating a hostile work environment, an employer must take prompt remedial action to stop the harassment when it knows or should know of the harassment. Thus, although the harassment eventually stopped due to the communication ban imposed on the sales representative, the appeals court held that a jury could find that the employer failed to take prompt remedial action to respond to the harassment.

Freeman v. Dal-Tile Corp., 4th Cir., No. 13-1481 (April 29, 2014).

Professional Pointer: This case provides an important reminder that an employer needs to train supervisors and managers on what to do if they witness inappropriate conduct in the workplace or if an employee brings inappropriate workplace conduct to their attention. 

R. Todd Creer is an attorney with Kamer Zucker Abbott, the Worklaw® Network member firm in Las Vegas.

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