“Ask Sheila” Column

Dear Sheila,

I think our company has done a good job with training employees on workplace harassment, having a culture of no harassment, and having good policies in place. But recently, we seem to have gotten quite a few of what I think of as “minor” complaints, such as a one-time incident of an inappropriate epithet said in the heat of the moment, or complaints about conduct that happened long ago that the employee claims is still making her uncomfortable to be around the perpetrators. Do we have to respond to every one of these, or are there some that are so minor we can just move on from?

Sincerely, Don’t Want to be a Full-Time Investigator

Dear Investigator:

What you are describing has been the subject of a few recent federal appellate cases. Bottom line, the courts are finding that an employer who fails to respond to and take appropriate remedial action for complaints that invoke sex, race, or other protected classes is vulnerable to liability should the complainant sue, even for one-time occurrences, or for past behavior that the complainant learns about later.

In a new Fifth Circuit Court of Appeals decision, the court reversed the lower court and held that a supervisor’s “single utterance of a racial epithet” can support a hostile work environment claim. Woods v. Cantrell, 29 F.4th 284 (5th Cir. 2022). The court found that while many of the plaintiff’s allegations were non-specific and conclusory, this one allegation was severe enough that if said even once, especially by a supervisor, could quickly alter the conditions of employment and create an abusive working environment. The Fifth Circuit sent the case back down to the trial court for further consideration of this claim on its merits.

In another recent Fifth Circuit Court of Appeals decision, a female firefighter learned that nine years earlier, a male supervisor got ahold of a sexual video that the firefighter had made privately for her husband, and for the next nine years, viewed the video repeatedly and showed it to another firefighter. Abbt v. City of Houston, 28 F.4th 601 (5th Cir. 2022). The complainant didn’t know this was happening until after the conduct stopped and the supervisor confessed it to her husband. She also learned that a manager over the supervisor also knew about it nine years earlier and didn’t report it. The issue in the case is whether the City could be liable when the objectionable conduct occurred when the complainant was unaware it was happening; in other words, could there be a hostile work environment created because she found out about it, when she was not directly affected at the time the objectionable conduct was actually occurring? The court held that simply learning about the conduct and having to continue to work, eat, and live alongside those who viewed the video was enough to create a hostile work environment, even though the conduct was no longer occurring. Notably, the court said that if she were no longer employed when she learned of the conduct, she would not have been able to maintain a sexual harassment cause of action, because learning of the conduct would not have created a hostile work environment.

The good news is that prompt investigation and proper handling of even serious claims will often shield employers from liability. The Seventh Circuit Court of Appeals just reiterated the state of the law in holding that an employee who complained of graphic sexual comments and racial epithets by coworkers could not maintain a cause of action when she quit after the employer wrote up one accused co-worker and gave a three-day suspension to another. Paschall v. Tube Processing Corp., 28 F.4th 805 (7th Cir. 2022). The complainant quit after the two disciplinary actions occurred, and before any additional improper conduct. The court found that the employer could not be liable because, although it didn’t terminate the employees in question who created the hostile work environment, as soon as it received the complaint, it was not negligent in discovering, investigating or remedying the harassment. Note, however, that this case would likely have turned out differently if the harassers were the plaintiff’s supervisors and not just co-workers – employers can be strictly liable for the actions of its supervisors and managers if the employer cannot prove it took steps to prevent it (training, discipline and reporting policy), and harassment from supervisors can have a bigger impact on the employees’ work environment.

So, keep your workplace harassment and discrimination policies up-to-date, make sure employees have a clear way to report concerns, and train both management and staff on a regular basis. And if you do receive a complaint of harassment or discrimination, especially one that impacts a protected class, conduct a fair and prompt investigation, no matter how minor the allegation. If the investigation shows that improper workplace conduct occurred, take action that a reasonable person would believe would remedy the situation.

“Ask Sheila” is prepared by Sheila Gladstone, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.

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