Harassment Evidence Was Sufficient to Support Jury Finding

By Jessica A. Merejo February 9, 2021
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​An employer that knew a hostile work environment existed in its workplace but failed to take corrective action may be held liable, the 2nd U.S. Circuit Court of Appeals ruled.

The plaintiff, one of four female correctional officers, brought hostile work environment claims against employer Ulster County Jail in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1983. The testifying officers offered proof of a pervasively sexualized work environment toward female employees. Incidents included male employees' use of pornographic magazines and screensavers, including by supervisors, as well as sexual comments made by various officers about the plaintiff's body and several specific incidents involving a male employee's behavior.

In 2005, the plaintiff complained of an incident to a supervisor, and the employer took no action. Two years later, the plaintiff again complained, but this time was given a choice between having the offending male employee fired or waiving her right to proceed on a formal complaint. After trial, a jury found for the plaintiff on both of her claims and awarded $400,000 against the employer.

The plaintiff and the employer appealed various issues, including several procedural matters. The employer argued that the incidents were minor and took place over an extended period. The appellate court reviewed applicable law and noted the factors to be considered, including the totality of the circumstances, the frequency of the conduct, the severity of the conduct, and whether the conduct was physically threatening or humiliating.

Although these incidents occurred over an extended period, the employees' actions were not isolated incidents nor minor pranks involving sexual innuendo. The court discussed an employer's liability when the employer fails to provide a reasonable avenue for discrimination complaints or fails to exercise reasonable care in taking corrective action when it knew or should have known about the harassing behavior. The court rejected the employer's claim and affirmed that the jury had a sufficient basis to determine that the employer failed to respond adequately to the plaintiff's complaint and was therefore liable for the employees' actions.

In addressing the final issue—the plaintiff's claim of suffering employment discrimination by her public employer in violation of 42 U.S.C. §1983—the court ruled that if a public employer acquiesces when one or more of its employees are engaging in conduct that creates a hostile work environment, a plaintiff may establish public-employer liability. The court determined that the employer's initial failure to act and later inadequate response created a workplace so permeated with discriminatory ridicule and insult that the employer could be liable.

Legg v. Ulster County, 2nd Cir., No. 17-2861 (Oct. 29, 2020).

Professional Pointer: The court's ruling emphasized that employers receiving notice—or that should have reasonably known—that a hostile work environment exists are responsible for taking decisive and swift action. This case presents a vivid reminder of how important it is to have in place anti-discrimination policies and reporting procedures. Employer policies should identify, but not be limited to, prohibited conduct, reporting procedures and anti-discrimination trainings.

Jessica A. Merejo is an attorney with Carmagnola & Ritardi LLC, the Worklaw® Network member firm in Morristown, N.J.

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