Delaware Employment Law Blog

The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven't been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of "ugly talk," the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

The court held that the EEOC had failed to establish the existence of an unlawful hostile environment because it had not shown that the rude comments and "ugly talk" were of a sexual nature or that they were made "because of" the employee's gender.

The EEOC argued that the harassment was because of his gender and, specifically, because of his effeminate behavior. This can be a valid cause of action--when a male employee is treated badly because he acts "too girly." But, here, despite the EEOC's argument, the testimony of the employee himself contradicted this argument. Thus, the court dismissed the gender-discrimination and sexual-harassment claims.

The court also dismissed the EEOC's retaliation claim. The employee was terminated, along with 11 other employees, as part of a reduction-in-force 3 months after his complaint to HR. The court expressed that it was "hard to believe" that the EEOC "is seriously arguing that the entire RIF process was a subterfuge for fraud designed for the sole purpose of providing cover for retaliation."

EEOC v. McPherson Cos., Inc., No. 10-cv-2627 (N.D. Ala. Nov. 14, 2012).

The discoverability of social-media evidence is far from a settled question. Many of the few cases that have addressed the question are employment claims. And the latest such decision is no exception. In EEOC v. Original Honeybaked Ham Company of Georgia, Inc., No. 11-02560-MSK_MEH (D. Col. Nov. 7, 2012), the Colorado District Court granted an employer's motion to compel and required the employee-class members to turn over their log-in and passwords to a special master, who would make an initial determination of discoverability.

The EEOC filed suit on behalf of approximately 20 female employees, who, the EEOC alleged, had been subject to unlawful sexual harassment and retaliation by their former employer. The defendant-employer sought to compel the class members to produce unredacted versions of their social-media accounts.

The court first reminded the parties that it was determining what was discoverable--not what would be admissible at trial. The court next acknowledged that discovery of social-media information is a "thorny and novel" area of the law. Then the court reached its first substantive conclusion:

The fact that [information] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.

Based on that conclusion as its starting point, the court then turned to the question at hand. First, the court concluded that the evidence was discoverable. This finding was based on postings by one of the former employees to her Facebook page. In those posts, the employee discussed her financial expectations in the lawsuit; sexually amorous communications with other class members, and post-termination employment and income, to name a few. Other class members posted comments to this individual's Facebook page.

The court then discussed the privacy interests of the class members and concluded that a process was needed to ensure that only relevant, discoverable information would be gathered. To do this, the court would appoint a forensic expert a special master. The court ordered the employees to provide "directly and confidentially to the special master," all "necessary information to access any social media website" the employee had used during the relevant time period.

The parties are then to submit a joint questionnaire for the special master to use in gathering the information. The special master would then provide the court with a hard copy of all of the information yielded by the process and the court would conduct an in camera review. The court would review the information for relevancy and turn over only what was relevant to the EEOC.

So, what's to be learned from this decision? First, litigants are going to continue to bring this issue to the court. Second, parties are going to continue to post information relevant to their claims on social-media accounts. And, third, the courts are going to continue to struggle with the best way to order such information be produced.

In this case, with a class of claimants, there does seem to be some justification for the incredible use of the court's resources and time but, more often than not, such justifications will not be present. And in those cases, what is the appropriate process for the collection, review, and production of social media? That remains to be seen.

Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee's failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way.

In the case of EEOC v. Holmes & Holmes Industrial, Inc., the EEOC filed suit against a construction company on behalf of several Black employees, alleging hostile work environment claims. To succeed in a case alleging discrimination based on a hostile work environment, a plaintiff must prove that he or she was subject to (1) intentional discrimination, that was (2) severe or pervasive (3) and subjectively offensive to the plaintiff, and (4) that would be objectively offensive to a reasonable person in the plaintiff's position.

In support of its claims against Holmes & Holmes, EEOC asserts that the employee-claimants faced frequent, racially-charged comments from their managers and co-workers. EEOC also contended that supervisors frequently told racial jokes. In response, the employer argued that the employees engaged in similar conduct, frequently using racial slurs and terms.

Following the conclusion of discovery, the EEOC moved for summary judgment--and won! The Court granted partial summary judgment, concluding that the EEOC had proved elements one, two, and four of its claims. The Court's decision noted that the EEOC had brought the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct."

The Court rejected the employer's argument that the employees' participation in the misconduct indicated that it wasn't offensive. Instead, the Court left for the jury the question of whether the employees were willing participants in the harassment.
The employer now finds itself in the unenviable position of going to trial in a case with very bad facts.

The lesson to be learned may be easier said than done but absolutely essential in preventing litigation and limiting liability--inappropriate or off-color jokes do not belong in the workplace, regardless of who you seems to find them funny. Really, there's absolutely nothing funny about being suied for unlawful employment discrimination.

Miseta v. Stardock, (E.D. Mich.), is a great example of what not to do as an employer in response to a claim of sexual harassment made by an employee.

The employer, Stardock, launched a new video game, Elemental: War of Magicm in August 2010. The game proved to be a complete failure. (I promise, it's relevant.)

Weeks before the launch, Stardock's Marketing Manager, Alexandra Miseta, quit. Shortly after she resigned, Miseta filed a Charge of Discrimination with the EEOC, and later instituted a lawsuit.

Miseta alleged that she had been sexually harassed by the company's CEO. Miseta's claim was based, in part, on emails reaching back to 2008. Significantly, when Miseta sent an email to the CEO asking him to change his behavior, he sent the following response:

I am an inappropriate, sexist, vulgar, and embarrassing person and I'm not inclined to change my behavior. If this is a problem, you will need to find another job. . . . Again, I am not willing to adapt my behavior to suit others. . . . I'm not some manager or coworker of yours. I own the company. It, and your job here, exist to suit my purposes, not vice versa.

After 16 months of discovery, Stardock's attorneys moved for summary judgment asserting that Wardell's comments, while inappropriate, do not constitute sexual harassment. Not surprisingly the Court denied summary judgment.

Instead of acknowledging the loss, Stardock elected to sue Miseta, alleging that she destroyed marketing materials for Elemental, resulting in the game's resoundingly poor performance. The timing of the suit raises some questions. Two years after the files were allegedly deleted, and shortly after its summary judgment motion was denied. Current Stardock employees have also come forward to deny that Miseta deleted files, and offering up emails from the CEO praising the marketing team's work while making no mention of deleted files.

To make matters worse, the CEO apparently has taken matters into his own hands, posting statements to at least one videogame website defending himself and indicting Miseta for "getting pissed off, quitting without notice and using her network access to wipe out our marketing assets."

This is the type of client behavior that keeps lawyers up at night.

The lessons from this case are pretty obvious--don't be a jerk to your employees, don't revel in your chauvinism, and if you are going to do these things anyway, don't do them in writing! On a more serious note, we all occasionally make mistakes. It is sometimes more valuable to admit defeat and resolve to do better the next time, rather than engaging in internet rants and retaliatory litigation.

Want some free anti-harassment and anti-discrimination training? Well, have I got a deal for you! Mystery Diners is a reality show on the Food Network. The show's concept involves a father-daughter team who pretend to be employees and/or customers at a target restaurant in order to help the owner uncover the "leaks in the dam" so to speak.

An episode that aired last week, called, "Managing Disaster," could be used as a workplace best-practices training video. In short, you could use the video to train employees that any of the conduct by the restaurant's manager should be considered prohibited conduct in your workplace.

Yes, it really was that bad. And I mean bad. Let me take a moment to run through just a few examples of conduct that occurred during the hiring process.

Candidate #1: Sarah the "Old Lady"

Two women are sent into the restaurant to interview for a waitress position. One of the women is Sarah, who is in her mid-30s and has lots of waitressing experience. She interviewed with the bad-guy-manager (we'll call him "Manager," despite he did anything but manage the employees).

During the interview, he asked her how old she was. Yes, you read that correctly. When she answered "I'm 35," Manager nearly fell out of his seat. He quickly sent her on her way and told her he'd be in touch. After she was out the door, he ran over to the bar, where he told the bartender that Sarah "was like, in her 30s--she'd be like a mother in here!!"

Candidate #2: Destiney In a Short Skirt
The second candidate was Destiney, the daughter of the father-daughter team, who I'd guess to be maybe 21 years old. Destiney was young and cute and wore a short skirt to herinterview. As if Manager hadn't already shown his true colors during Sarah's interview, he took it to an entirely new level with Destiney. By the end of the "interview," though, you can be sure that Destiney had been offered the job.

For starters, he made her sit on a couch for the interview, which was not only way too informal but also clearly uncomfortable for Destiney in light of her attire. When Destiney admitted that she had no real experience to speak of, Manager assured her that experience was not important--"as long as you're cute."

Ethical Standards Lower than a Short Skirt

Seeing that he couldn't ask her about anything relevant to the duties of the job, I guess it's natural that Manager turned to other topics. In this case, Manager chose "partying," and began a series of questions about Destiney's after-hour activities, such as whether she liked to "party" and whether she liked to go clubbing, which "they" (presumably, Manager and his creepy friends), "did all of the time."

The low point of the "interview" came when Manager touched Destiney's knee as he sat way too close to her on the low-to-the-ground couch and talked about low-life topics like "partying" and assuring her that his standards for hiring were as low as his morals. What a dirt bag. And you can imagine what the father, who sat in a trailer watching the live video stream with the restaurant's owner, must have thought as he saw Manager Creepy touch Daughter Destiney's bare knee. Nice.

When Busted, Blame Others
Folks, the take-aways from this episode are, admittedly, obvious to most of us. They weren't, apparently, as obvious to Manager Creepy, who was shocked and appalled that the owner had secretly videotaped these antics. And, in a demonstration of some of the best blame-shifting skills I've perhaps ever seen, Manager Creepy, furious about the intrusion, turned the entire situation around and accused the owner of being an unsupportive boss.

Be sure to catch the show for some free anti-harassment-and-discrimination training.

Employee is harassed at work. Employee reports harassment to his employer. Employer investigates immediately. Employer stops harassing behavior. Anything short of this will result in liability. Compliance will preclude liability pursuant to what is known as the Ellerth-Faragher defense.

But what if the harassment occurs outside of work? Certainly, at-work harassment is the most common scenario. But it's not the only scenario that can trigger liability. Today, in the context of social media, this scenario has become easier to imagine. A case decided by a state court in California earlier this month provides a vivid example of precisely this set of facts.

In Espinoza v. County of Orange, the plaintiff was an employee with a physical disability. In 2006, co-workers started two blogs, where they posted critical and spiteful comments about the plaintiff. Some of the posts attacked managers other than the plaintiff and about the workplace generally.

The employer did not sponsor or endorse the blog or participate in it in any official way. The plaintiff complained repeatedly to management of the blog posts, as well allegedly harassing conduct that occurred in the workplace.

Management apparently made some meager efforts to get the employees to stop posting about the plaintiff. For example, there were a couple of emails sent to the co-workers, instructing them to stop the postings. Those efforts were not successful, though, and the plaintiff filed suit for disability-based harassment. Following a trial, the jury awarded the plaintiff nearly a million dollars in damages.

The employer appealed and argued, in part, that it could not be held liable for conduct that occurred outside the workplace. The court rejected this argument. The reality is that the duty of an employer to protect its employees from unlawful harassment. This duty is unaffected by where the location occurs. If, for example, a sales employee is harassed by a customer in the customer's worksite, the employer's duty is unchanged--the law requires that the employer stop the harassment and protect the employee. Similarly, if the harassment occurs in cyberspace, the duty remains the same--the employer must protect the employee and stop the harassment.

Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. Ct. February 9, 2012)

(H/T to Eric Goldman at his Technology and Marketing Law Blog. Prof. Goldman also looks at this case from an IP perspective and offers insight into the court's analysis of the employer's immunity argument pursuant to 47 U.S.C. 230).

Kenneth Kratz, district attorney of Calumet County, Wisconsin, sent 30 text messages to a 26-year-old domestic-abuse victim.  Odd choice of medium, one might say, for an attorney to communicate with a witness.  I can't say that I generally communicate with clients or witnesses via text message.  But that may be because I tend to communicate with clients and witnesses about case-related issues--and do so in a professional context.  Not Mr. Kratz.

DA Kratz is reported to have sent these text messages in an attempt to solicit her for a romantic relationship.  In other words, he "sexted" her.  The content of the messages are salacious and, well, obnoxious.  For example, he wrote in one message, "Are you the kind of girl that likes secret contact with an older married elected DA ... the riskier the better?" 

Remember, he is sending these messages to a woman whose ex-boyfriend he was also prosecuting on charges that the ex-boyfriend nearly choked her to death.

Katz did not deny sending the message but, instead, defended himself, saying that the state's disciplinary board had cleared him of any misconduct.  He is reported as being angry that the "non-news story" of his sexting worried him because of its potential effect on his "reputational interests."  

The story came to light after Katz failed to take the witness' lack of interest seriously, leading her to report the messages to the police.  The police department released the messages to the media at the request of the Associated Press. 

[H/T Sharon Nelson, Ride the Lightning]

So, what are some of the numerous lessons for employers to learn from this story?  (Read on after the jump to find out)

Claims of sexual harassment made by males has been on the rise. Allegations of male-to-male harassment, especially, are becoming increasingly common. Female-to-male harassment claims, though, are less common. And that's why a recent decision from the Ninth Circuit is particularly noteworthy for employers.

In EEOC v. Prospect Airport Services, Inc., the male plaintiff and the female alleged harasser both worked as passenger assistants (helping passengers who need wheelchairs) at McCarran International Airport. The plaintiff, Rudolpho Lamas, was a recent widower.  His alleged harasser, Sylvia Munoz, was married.

After Munoz propositioned Lamas repeatedly, Lamas reported her conduct to the company’s assistant manager.  The manager responded that Lamas (the victim), should tell Munoz to stop and let management know if she didn’t stop. Lamas had already told Munoz that he was not interested, but, following his supervisor’s advice, he told her again. This did not work; Munoz gave Lamas a second note expressing interest in a relationship with him and then tried to give him a picture of herself. Lamas next asked his immediate supervisor for help, but she did nothing.

Munoz gave Lamas a third note that was even more aggressive and explicit. By this time, Munoz had told other co-workers of her interest in Lamas, and they began lobbying him on her behalf. He told them he was not interested, and began feeling embarrassed. Lamas went to the next supervisor up the chain, gave him the note, and asked him to make Munoz stop. The supervisor said he did not want to get involved in personal matters but he agreed to speak to Munoz as a “favor” to Lamas, acknowledging that the latest “love letter” was a violation of the company’s sexual harassment policy. The supervisor spoke to Munoz and warned her to stop, but she didn’t stop.

Munoz began making suggestive remarks and gestures whenever she was around Lamas, on a daily basis. Lamas began to feel oppressed and offended by the constant pressure from Munoz. She had co-workers tell him that she was going to “get him” no matter what. Co-workers began to speculate that Lamas was gay because of his negative response to Munoz. Lamas consulted a psychologist about his emotional distress; he felt helpless and cried.

Lamas complained to four different managers. The company’s general manager said the situation was a joke and that Lamas should walk around singing to himself, “I’m too sexy for my shirt.”

The EEOC announced last week that large grocery store chain Albertsons has agreed to pay $8.9 million to settle three lawsuits in which the EEOC alleged that it had engaged in race, color and national origin discrimination, and retaliation, at a distribution center in Aurora, Colorado.

According to the EEOC lawsuits and a news report, 168 minority employees were subjected to racist and anti-Semitic derogatory epithets, slurs and graffiti. Allegedly, supervisors were aware of and even participated in the harassing conduct. One African-American employee whose leg was broken by a piece of equipment at work was allegedly left lying on the warehouse floor for thirty minutes by a white supervisor who told him that was what he got for being black. Albertsons denied that it had engaged in discrimination or harassment.

The $8.9 million settlement will be divided among the 168 employees who complained about harassment between 1995 and 2008 (an average of about $53,000 per person).

The lesson for employers is clear, according to the EEOC’s press release. “EEOC Acting Chairman Stuart J. Ishimaru said, ‘Employers simply cannot overlook or tolerate this kind of outrageous discrimination and retaliation. The EEOC certainly won’t. We will aggressively pursue employers who violate the laws we enforce. And we’ll insist on substantial and meaningful relief for the victims before settling these cases.’” Albertsons also agreed to four years of court-supervised monitoring and a training program for its managers.

Employers who suspect or know about harassing behaviors in the workplace must act promptly to stop them to avoid liability, and should train all employees regarding compliance with equal employment opportunity laws.

Two high-profile sexual-harassment cases are in the news.  One is just beginning, the other has come to a close.

Liza Minnelli settled a lawsuit brought five years ago by her former chauffeur M'Hammed Soumayah that had sought $100 million in damages. The amount of the settlement was not disclosed, but the settlement meant that Ms. Minnelli would not be required to give a deposition in the case. The chauffeur claimed that his boss got drunk, beat him, and forced him to have sex with her. These allegations, if true, would state a claim for sexual harassment under Title VII of the Civil Rights Act of 1964. This case shows that women are sometimes also accused of being sexual harassers.

In another interesting development, the U.S. Equal Employment Opportunity Commission has just filed a class action against a Brooklyn fish seller, M. Slavin & Sons, accusing it of harassing a group of African-American male employees based on their sex, race and/or national origin (African). This case is getting attention not because of the employer’s fame, but because of the sordid nature of the accusations.

According to the Complaint, the owners and managers engaged in a variety of uncouth acts, including grabbing, pinching and sticking fish hooks (!) into the buttocks of male employees, making crude sexually explicit comments to their employees, using racial slurs (including the “N” word), saying derogatory things about Africa, and retaliating against an employee who complained. This is a textbook example of what not to do, even in a rough-and-tumble workplace like a fish market, and is another case of sexual harassment that differs from the more common male on female pattern.

Last night’s shocking revelations by David Letterman about an extortion plot threatening to expose his affairs with subordinates reveal to the larger public something human resources professionals have known for years: Romantic workplace relationships can lead to trouble, legal and otherwise. As a result, you should review your policies and practices to ensure that a failed romance ends with only a broken heart, not an empty bank account.

Workplace romance

The typical scenario unfolds like this: A supervisor begins to date a subordinate. They go out, have a good time, and continue to see each other socially. The two employees interact every day at work, and as the relationship grows, some of their romantic behavior seeps into the workplace. They are frequently together behind closed doors, e-mails are exchanged regularly, other employees take notice and begin talking about their questionable conduct, and the office suffers decreased efficiency and productivity.

When two employees having a romantic relationship are in the position of supervisor and subordinate, others become resentful and charges of favoritism arise. The couple may have sexual contact at work or elsewhere, sometimes with embarrassing consequences.
After a few months, one of the employees decides things aren't working out and breaks it off, much to the other's chagrin. The supervisor then unsuccessfully attempts to pick up their business relationship where it left off before the affair or to retaliate against the subordinate.

Things get out of hand, and the subordinate files a sexual harassment claim.
Sexual harassment claims can be extremely expensive, even if you eventually prevail. They're also divisive and sabotage productivity. For an individual employee — victim or accused — a sexual harassment claim can be "professional suicide." Since as many as a third of all consensual romantic relationships begin at the workplace and many end badly, what's a beleaguered employer to do?

When romance sours

Most employees instinctively know when to draw the line on behavior that could be viewed as sexual harassment toward people they know only casually at work. The line gets blurry for some, however, when the questionable behavior was at one time consensual.
Your obligation to stop harassment in that situation is clear. You have no responsibility to seek out a dating couple daily and inquire about the status of their relationship to determine if it's still consensual. But the minute one of them indicates he or she wants the other to stop the contact and makes that known to the company, your duty to stop what has arguably become sexual harassment begins and the liability meter starts ticking. Just because the victim consented to the same or similar conduct at one time, that doesn't absolve your company from liability. The troublesome aspect is, you often may not fully appreciate the fact that the relationship has now become sexual harassment.

Other concerns include the sexual favoritism claims that frequently follow on the heels of a workplace affair. Those claims involve a type of sex discrimination that stems from one employee being treated unfavorably because he or she isn't in a personal relationship with the supervisor. The employee who's involved with the supervisor receives favorable treatment to the detriment of other employees in the department.

In July, Delaware Governor Jack Markell signed into law an amendment to Delaware’s employment-discrimination statute. The amendment prohibits discrimination based on sexual orientation. Not surprisingly, many employers are concerned about the potential for increased litigation in light of the new law. Some employers may be surprised to learn that current federal law has been used to achieve a similar level of protection. A recent decision from the federal appeals court demonstrates the extent that such protection is provided under Title VII of the Civil Rights Act (Title VII).

The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over the federal courts of Delaware, Pennsylvania, New Jersey, and the Virgin Islands, ruled in late August that a homosexual employee could proceed with his claim that he was harassed and fired because of his “effeminate behaviors.” The unanimous decision of a three-judge panel in Prowel v. Wise Business Forms, Inc., has made headlines across the country as an extension of Title VII’s sex-based discrimination provisions. Brian D. Prowel brought the claim after he was terminated by his employer after 13 years with the company. He alleges that Wise told him that he was being terminated for lack of work as part of a workforce reduction. 

According to Prowel, his termination actually was a result of “gender stereotyping.” Unlawful gender stereotyping in the workplace occurs when an employer discriminates against an individual because the individual fails to conform to a certain perception about how the gender should look and act.

Prowel claims that his coworkers called him “Rosebud” and “Princess” because he was well dressed and well groomed and did not engage in rowdy and distasteful behavior like his male colleagues. Coworkers, Prowel claims, left items such as a pink, feathered tiara and anti-gay religious pamphlets on his desk. In other words, Prowel claims that he was harassed and eventually terminated because he didn’t act “manly enough.”

Although the Prowel Rule May Be New, A Much Older Rule Still Applies

Organizations with employees in Delaware, Pennsylvania, and New Jersey should be mindful of the court’s ruling in Prowel, not because it stands for an expansion of the anti-discrimination laws, but because it strongly supports a principle that is much older than Title VII: Do unto others as you would have them do unto you. If an individual is being harassed, he will likely be able to characterize the harassment as being based on some protected characteristic. If no harassment occurs in the first place, there will be no need to split hairs over the true reason that he harassment occurred. Thus, to avoid being faced with a claim of unlawful harassment, the best practice is to strictly prohibit any kind of taunting, mockery, or from occurring in your organization’s workplace.

Employers in Delaware, Pennsylvania, New Jersey, and Virgin Islands, who are within the jurisdiction of the Third Circuit Court of Appeals, have the benefit of a new decision from that court providing guidance on a key issue in harassment law.  The case, Huston v. Procter & Gamble Paper Products Corp., issued on June 8, is good news for employers and offers important precedent in a critical area of employment law. 

Some context . . .

When an employee files a sexual or other harassment claim involving allegations of harassment by a co-worker, the employer often invokes what is known as the Ellerth-Faragher defense.  To utilize this defense, the employer must show that it took reasonable steps to prevent harassment in the first place.  This is normally accomplished by showing that the organization had an anti-harassment policy, which was communicated to the employees.  (See my previous post for more information on what exactly constitutes an effective anti-harassment policy). 

If the employer can meet this burden, then the employer must demonstrate that it took reasonable steps to correct and mitigate the harassment.  Usually this means that the employee followed the steps outlined in the organization's anti-harassment by reporting the offensive conduct.  Next, it's up to the employer to act on the information that the employee has provided.  This requires the employer to follow the steps enumerated in its policy and to do so quickly.  At the end of the day, the employer must investigate the claim and take whatever steps necessary to cure any ongoing harassment.  And the employee must cooperate in the investigation and, within reason, accept whatever remedy the employer implements.

If the employer fails to promptly investigate or otherwise act once it knows or "has reason to know" of the allegations of harassment, the defense is not available.  The case often becomes one of "he-said, she-said" evidence and the employer will likely find it quite difficult to present an effective defense. 

Therefore, one of the most critical points is when the employee first makes its report.  If the employee tells only a friend, family member, or coworker, the employer is not deemed to have knowledge of the allegations and is not required to take any action.  If, however, the employer makes a complaint of harassment, formal or informal, to a member of management, including HR, the company is deemed to have knowledge of the allegations and its duty to act is triggered. 

In Huston, the 3d Circuit addressed the question of just who qualifies as a managerial employee sufficient for the purposes of imputing knowledge to the employer.  The employee-plaintiff, Huston, worked on a team of employees who operated large paper machines and claimed that the machine supervisors knew of the harassment but failed to take action in accordance with P&G's policy. She argued that, because "supervisors" had knowledge of the conduct, the organization also was imputed to have knowledge, triggering its duty to act.

The Third Circuit disagreed.  The court found that the machine supervisors did have some, limited supervisory functions but those functions were limited to  supervising work on the machines, which was insufficient to trigger liability for the employer.  Only two types of employees will be sufficient to impute knowledge of co-worker sexual harassment.  First, where the employee is "sufficiently senior" to the complainant or otherwise "in a position of administrative responsibility over employees under him, so that such knowledge is important to his general managerial duties.  Department or plant managers are examples of this first type of employee. 

Second, where the employee "is specifically employed to deal with sexual harassment" will be imputed to the company.  "Typically such an employee will be part of the employer's human resources, personnel, or employee relations group or department."  The court explained that just because an employee has "supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status [in this context].”  Instead, the court explained, “to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.”