Employer sees something wrong with a little bump n’ grind, defeats sexual harassment lawsuit


Allgamenab at English Wikipedia [Public domain], via Wikimedia Commons

Eat your heart out, R. Kelly.

Earlier this Summer, I carried on about the decision from the Third Circuit Court of Appeals in Minarsky v. Susquehanna County. It’s a sexual harassment case, but not just any sexual harassment case. I called it the most important decision of 2018.

In Minarsky, the Third Circuit emphasized how vital it is for an employer to not only provide effective ways for employees to complain about sexual harassment, but also to take those complaints seriously by responding in such a way that is reasonably intended to end the complained-of bad behavior. The Third Circuit concluded that the employer’s efforts fell well short of that bar.

Conversely, there’s a case out of the Fifth Circuit, this one right here, in which the employer nailed it!

The plaintiff claimed that a subordinate had sexually harassed her, with the most severe act occurring when the assistant allegedly pressed himself up against her inside a railcar.

Now, let’s pause for a second and go back to Minarsky. Remember, one of the key takeaways was for employers to provide effective ways for employees to complain about workplace harassment.

In contrast with Minarsky, immediately after the railcar incident, the employee complained to a business manager who ensured that the plaintiff documented her complaint in writing. The plaintiff also called a company compliance hotline.

The other Minarsky takeaway is to take action that is reasonably calculated to end the complained-of behavior. After the plaintiff’s complaints, the company gave the plaintiff a paid day off to avoid contact with the alleged harasser. Immediately after that, during the plaintiff’s scheduled vacation, the company conducted a full investigation (during which it suspended the alleged harasser.) The company was unable to confirm whether the subordinate’s conduct was intentional. So, it returned him to work after a few weeks. However, the company took further corrective action by meeting with the subordinate about the investigation, counseling him about workplace policies on professionalism and harassment, and ultimately prohibiting him from going to the work area where the plaintiff was assigned. The subordinate never touched or talked to the plaintiff again.

It sounds to me like the employer discharged its duties and should prevail here. And the court agreed:

[T]he undisputed evidence shows as a matter of law that [the employer] took prompt remedial action sufficient to avoid Title VII liability because it immediately took action to protect [Plaintiff] while the investigation was pending, and then following the investigation it moved [Plaintiff] to a separate work area, instructed [Plaintiff’s subordinate] not to enter that work area, counseled [Plaintiff’s subordinate] on its sexual harassment and professionalism policies, provided an escort to help [Plaintiff] feel safer, and the sexual harassment ceased.

Employer wins.

And if you can too — or avoid the lawsuit altogether — by taking complaints of sexual harassment just as seriously.


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