Employers don’t have crystal balls.
Last week, the Third Circuit Court of Appeals reaffirmed the well-settled rule that when one coworker accuses another of creating a hostile work environment, that claim will fail ten times out of ten unless the employer knew or should have known about the harassment but failed to take prompt and adequate remedial action. It’s otherwise known as respondeat superior liability.
The case involved a male plaintiff who claimed that a coworker harassed him because of his wife’s Filipina background and Doe’s perceived homosexuality. The lower court dismissed the plaintiff’s hostile work environment claim as lacking any respondeat superior liability.
Indeed, the plaintiff never alleged in his complaint that he informed any manager about the harassment.
On appeal, the plaintiff argued that the harasser previously had openly directed sexually and racially offensive comments at women and Black people. There, it followed that the employer knew or should have known about the coworker’s sexual and racial harassment directed at him.
Except, that’s not how it works.
The Third Circuit noted that “a work environment is hostile if the discriminatory conduct alters the conditions of the victim’s employment.” Therefore, it focused on whether the defendant knew or should have known whether the harasser’s behavior had altered the conditions of the plaintiff’s employment, and the plaintiff did not allege that the harasser’s behavior toward others altered his working conditions.
It sounded like the harasser was a real piece of work. The plaintiff claimed that the harasser told him that one of his previously assigned helpers killed himself, and another sought a transfer. He allegedly also told the plaintiff he was fired from a previous job due to his personality disorder. But, again, the defendant did not know about these conversations.
The plaintiff conceded that he never attempted to report his harasser but argued to the court that doing so would have been futile because his prior complaints about another coworker’s homophobic slurs resulted only in his transfer to work with the harasser. However, objectively, this was not the case. Indeed, when the defendant learned of the harassment through the police, it immediately placed the harasser on administrative leave and investigated the incident.
The Third Circuit affirmed the dismissal of the plaintiff’s hostile work environment claims for these reasons.
I feel for the plaintiff and the others the coworker may have harassed. Cases like these aren’t about escaping liability and should be outliers.
Good workplaces have clear anti-harassment policies, multiple avenues for reporting, managers who take complaints seriously, and responses reasonably designed to end the complained-of behavior.