If a tree falls in the forest and no one is around to hear it, does it make a sound?
I don’t intend this blog post to answer that question specifically. However, there is an employment law analogy that I will address today. Plaintiffs alleging they suffered a hostile work environment must present evidence of what we call “respondeat superior liability.” That’s fancy Latin speak for vicarious liability, which still requires some explanation.
Whether an employer may be vicariously liable depends on the bad actor. An employer might be strictly liable if the harasser was a supervisor. If the harasser was merely a co-worker, then a plaintiff must prove vicarious liability by establishing that supervisors knew or should have known about the co-worker’s harassment but failed to take prompt and adequate remedial action to stop the abuse.
For example, in this New Jersey federal court decision I read last night, a staffing company helped place the plaintiff, an Indian man of Islamic faith, with a client that required his services. The plaintiff’s assignment with the client was for three months. During that time, the plaintiff allegedly endured discriminatory comments. For example, while having lunch one day, a co-worker allegedly asked the plaintiff, “Oh, are you hiding a bomb?” On two other occasions, the plaintiff asserted that the co-worker called him a “jihadi” and asked, “[a]re you a jihadist?” The latter allegedly occurred in front of a supervisor of the client (but not the staffing company), who the plaintiff claimed smirked and said nothing in response to hearing the comment. Plaintiff also alleged that the co-worker told him to “shut up,” “be quiet,” and informed him that “no one wants to know what you have to say” and that “nobody’s listening (to you).” On several occasions, the plaintiff stated that the co-worker told him “[w]e don’t understand your accent” and “[w]e don’t understand what you have to say.” Plaintiff maintained that he made these comments regularly at meetings with employees and supervisors of the client.
I think you can see where I’m going with this.
The plaintiff sued both the staffing company and the client, alleging that each was responsible for the hostile work environment that his co-worker created. The claims against the client will go to a jury. A supervisor allegedly witnessed the comments and did not do anything to remediate them.
On the other hand, the staffing company defeated the hostile work environment claims against it. The plaintiff testified at his deposition that he could not recall complaining to the staffing company about the co-worker’s remarks. While he mentioned “having trouble getting along” with his co-worker, he couldn’t remember whether he tied that to his race, religion, or national origin. The staffing company wasn’t otherwise on notice of the alleged behavior. Therefore, it could not reasonably have taken steps to fix the problem.
When staffing companies are involved, employees must understand that they should complain to both the client and the staffing company about situations like this. Forget about the lawsuit. The odds of this type of bad behavior continuing decrease significantly when two businesses (rather than one) know about it. Prompt remedial action protects victims and their co-workers. It also shows that the companies take these matters seriously and emboldens others to speak up.