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Employment Law Blog
James Tarquin, P.A
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What Is The Legal Significance Of Prior Complaints Against The Same Sexual Harasser?

sexual-harassers-behavior

A sexual harassment victim will sometimes have personal knowledge or information that the same individual sexually harassing him or her has also sexually harassed other employees.  One issue arising out of such circumstances is whether any of the other employees made a prior sexual harassment complaint against the same harasser.  If an employee did make a prior complaint of sexual harassment against the same harasser, the sexual harassment victim can use such a complaint in establishing that the employer knew or should have known of the harasser’s sexual behavior towards him or her and the employer failed to take appropriate remedial action to prevent the subsequent harassment of him or her.

Employer Knowledge of Sexual Harasser’s Behavior

When an employer knows or should know about sexually harassing conduct in the workplace, the employer is required by Title VII of the Civil Rights Act (Title VII) to take prompt and appropriate remedial action to prevent recurrence of the harassment.  Generally, an employer receives notice of a harasser’s sexually harassing behavior in the form of a complaint from the victim.  However, as explained by the U.S. Eighth Circuit Court of Appeals in Sims v. Health Midwest Physician Services Corp., 196 F.3d 915, 920 (8th Cir. 1999), “notification of sexual harassment to an employer need not come solely from the victim of the harassment for knowledge to be imputed to the employer.”  Rather, as pointed out by the U.S. First Circuit Court of Appeals in Gray v. Genlyte Group, Inc., 289 F.3d 128 (1st Cir. 2002), once an employer receives “notice” of the harasser’s sexual harassing behavior and “fail[s] to act,” the employer “could easily become responsible for later harassment not specifically reported to it.” As determined by the U.S. Eleventh Circuit Court of Appeals in Dees v. World Services, Inc., 168 F.3d 417 (11th Cir. 1999), “prior complaints about the same harasser may show an employer’s knowledge or “lack of reasonable care” in correcting the sexual harassment.      

Prior Complaints Against Same Sexual Harasser:  A Case Study

These principles are illustrated in Mann v. Mayor of Alderman of Savannah, 906 F.Supp. 1572 (S.D. Ga. 1995).  In that case, the employer argued that it was not liable for the harasser’s sexual harassment of the victim because it took appropriate remedial action in response to the victim’s complaint as established by the fact that no further incidents of sexual harassment took place.  In rejecting this argument, the court pointed out that the evidence showed the employer knew or should have known that the same harasser had harassed other employees before the victim complained about the harassment against her.  Under such circumstances, the court observed, “the question then becomes whether [the employer] acted appropriately in remedying the situation of the [same harasser] as a sexual harasser, not simply remedying the situation of the [same harasser] as a sexual harasser of [the victim].”  Thus, the court emphasized, simply stopping the harassment after the victim complained could not immunize the employer from liability.  Rather, the court concluded, the employer’s knowledge that the same harasser had harassed other employees showed the employer had failed to take appropriate remedial action in order to prevent the harassment against the victim. 

In reaching its conclusion, the court stated that imposing a duty on an employer to prevent further harassment by the same harasser against one employee when the employer has notice of prior harassment by the same harasser against other employees “is a logical comprehension” of Title VII of the Civil Rights Act.  In stressing that a “contrary reading [of Title VII] would allow an employer to “absolve itself of liability by simply removing a harasser from contact with any number of female employee victims,” the court explained that:

In other words, Mr. X could harass Ms. A.  If Ms. A then complained to the employer, then the employer could simply remove Mr. X from Ms. A’s working environment and place him in a different environment with, for example, Ms. B.  To say that the employer owes no duty to prevent Ms. B from being harassed contravenes the public policy and goals behind Title VII.

Prior Complaints Against Same Sexual Harasser & Employer Liability

Other courts have reached similar conclusions.  Echoing the reasoning in Munn, the court in Nichols v. Wal-Mart Stores, Inc., 1997 WL 33147702 (M.D. Fla. March 26, 1997) the court rejected the employer’s argument that it took appropriate remedial action after the victim complained about sexual harassment because the employer had received prior complaints about the same harasser.  The court reasoned that “the fact that the [victim] was harassed by [the same harasser] demonstrates that appropriate remedial action was not taken.”  Plainly reinforcing the holding in Munn, the court in Brooks v. H.J. Russell & Co., 66 F.Supp.2d 1349 (N.D. Ga. 1999) concluded that it was for the jury to decide whether the employer took prompt remedial action by terminating the harasser after the victim complained about his sexually harassing behavior because the employer had received a prior complaint about the harasser long before the sexually harassing behavior against the victim occurred.   The court reasoned that a jury could find that the employer knew before the subsequent harassment of the victim hat the harasser engaged in sexual harassment against others and failed to take appropriate remedial action to stop his sexually harassing behavior.  Thus, as explained by the court in Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 8910651 (N.D. Ga. Feb. 5, 2008), “[a]n employer who should have anticipated that the [employee] would become a victim of sexual harassment in the workplace and yet failed to take action reasonably calculated to prevent such harassment is liable for the harassment under Title VII.”

This line of decisions illustrates that an employer’s liability for sexually harassing behavior against a victim sometimes may turn on whether there was a prior sexual harassment complaint against the same harasser.  When there is a prior complaint against the same harasser, the victim can use such a complaint in establishing that the employer’s liability for the sexual harassment against him or her even if the sexually harassing behavior stopped after he or she complained about the harassment.  The subsequent harassment of the victim demonstrates that the employer did not take appropriate remedial action in response to the prior sexual harassment complaint against the same harasser.

Consultation With Employment Law Attorney   

We have extensive experience protecting and vindicating the rights of sexual harassment victims.  If you have been the victim of sexual harassment, or have questions about an employer’s obligation to take prompt and effective remedial action after receiving notice of sexually harassing behavior in the workplace, please contact our office for a free consultation. 

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