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Must Employers Do More Than Just Stop Scheduling Sexual Harassment Victims To Work With The Harasser?

Boss sexual harassing to blonde secretary at workplace

Through their decades of experience representing sexual harassment victims, our sexual harassment lawyers in Marion County, Florida know that after sexual harassment victims lodge a sexual harassment complaint, the first remedial action often taken by employers is to stop scheduling victims to work with their harasser. In far too many cases, however, employers take no further remedial action. Having taken no other remedial action, employers then argue during litigation that they complied with their obligation to prevent sexual harassment by no longer scheduling sexual harassments to work with their harasser. In other words, according to employers, no longer scheduling sexual harassment victims to work with their harasser is enough, by itself, to fulfill their remedial obligation under federal employment discrimination law. In this article, our sexual harassment lawyers in Marion County, Florida explain how the decision in U.S. Equal Employment Opportunity Commission v. Golden Entertainment, Inc., 2023 WL 4134696 (D. Md. June 22, 2023) illustrates that employers are required to do more than simply stop scheduling sexual harassment victims to work with their harasser.

Employers Must Prevent Sexual Harassment

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from sexual harassment in the workplace. In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the U.S. Supreme Court ruled that Title VII imposes an “affirmative obligation” on employers to prevent sexual harassment in the workplace. As part of their obligation to prevent sexual harassment, employers are required to take prompt and effective remedial action once they know or should have known about sexual harassment in the workplace. In order to be prompt and effective, the employer’s remedial action must stop the harassment and prevent the harassment from recurring. When an employer takes no remedial action, or the remedial action does not end the harassment, the employer is liable under Title VII for creating and maintaining a sexually hostile work environment.

Sexual Harassment Lawsuit

In Golden Entertainment, the U.S. Equal Employment Opportunity Commission (EEOC) brought a sexual harassment lawsuit against Golden Entertainment, Inc. (Golden) on behalf of a former employee of Golden, Payton. The EEOC is the federal administrative agency responsible for interpreting and enforcing Title VII. As part of its enforcement machinery, the EEOC brings lawsuits on behalf of employment discrimination victims. The EEOC alleges that Payton was subjected to a sexually hostile work environment in violation of Title VII.

Golden owns the Rocky Gap Casino and Resort (Rocky Gap). In May 2017, Payton began working as a bartender at Rocky Gap. Payton alleges that her co-worker, WO, began sexually harassing her during her employee orientation and continued to harass her until she was fired in September 2017. The sexual harassment, according to Payton, including sexual advances, touching her buttocks and hips, sexual remarks, and comments about her body.

On July 14, 2017, Payton reported the harassment to her supervisors. On July 19, 2017, Payton lodged a sexual harassment complaint with Rocky Gap’s human resources department. Golden then launched an investigation into Payton’s allegations of sexual harassment. At the conclusion of its investigation, Golden determined that Payton’s allegations of sexual harassment could not be corroborated.

Harassment Continues After Complaint

After Payton made her sexual harassment complaint, Golden no longer scheduled Payton and WO to work together. Payton, however, maintains that WO’s sexual harassment did not cease after she reported his sexual harassment to Golden. In this regard, Payton alleges that, on July 19, 2017, WO approached her from behind the bar and pressed his genitals against her buttocks. Payton also alleges that WO would lean into her and make remarks in her ear such as: “I’ll make whatever comments I want to make about your rear-end and nothing is going to be done about it,” when they would go to the casino vault to get money for the bars. Payton also alleges that on another occasion WO subjected her to a sexual epithet. Payton maintains that she did not report this conduct to the human resource’s department because she was already losing shifts after previously reporting WO’s sexual harassment to the human resources department.

Sexual Harassment Must Stop

Golden filed a motion with the trial court seeking dismissal of Payton’s sexual harassment claim. In moving for dismissal, Golden argued that it took prompt and effective remedial action in response to Payton’s sexual harassment allegations by investigating the harassment and no longer scheduling Payton and WO to work together. The trial court denied Golden’s motion for dismissal and ruled that Payton was entitled to proceed to a jury trial on her sexual harassment claim.

In rejecting Golden’s contention that it took prompt and effective remedial action by no longer scheduling Payton and WO to work together, the trial court pointed out that the evidence shows that WO’s “conduct continued after Payton lodged her sexual harassment complaint.” More specifically, Payton “testified during her deposition that [WO] continued to make harassing comments to her after she reported his conduct to human resources.” Thus, the fact that Golden no longer scheduled Payton and WO to work together did not satisfy Golden’s remedial obligation under Title VII because the sexual harassment continued.

In rejecting Golden’s assertion that it took prompt and effective remedial action by investigating Payton’s allegations of sexual harassment, the trial court found that the evidence “raises questions about the sufficiency and merits” of the investigation. The trial court observed that Golden failed to interview any of the witnesses that Payton identified as being able to corroborate her sexual harassment claims. The trial court also noted that Golden’s investigators “spent only two hours and eight minutes reviewing a 16-hour surveillance video showing security camera footage of the two shifts that Payton shared” with WO on July 14, 2017 and July 19, 2017. The trial court also pointed out that Golden “elected not to preserve this video footage, thereby precluding any review of the video within the context of this litigation.”

Marion County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Marion County, Florida have litigated sexual harassment cases in Florida courts for more then twenty years. If you have been sexually harassed at work or have questions about an employer’s obligation to protect you from sexual harassment in the workplace, please contact our office for a free consultation with our sexual harassment lawyers in Marion County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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