Fourth Circuit Court of Appeals Points Out Defects in Sexual Harassment Policy

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08.11.2003

Steven A. Rowe

Susanna Knutson Gibbons

In a recent decision, the Fourth Circuit Court of Appeals highlighted the problems an employer can face when its complaint procedure for harassment incidents is inadequate. In Ocheltree v. Scollon Productions, Incorporated, the plaintiff sued her employer, Scollon Productions, Incorporated ("Scollon"), under Title VII of the Civil Rights Act of 1964. The plaintiff alleged that she had experienced sex discrimination and retaliation in the workplace.

The jury returned a verdict in the plaintiff’s favor, finding that she had been subjected to a hostile work environment. The jury awarded her both compensatory and punitive damages. Scollon appealed from the judgment, arguing that it should have been granted judgment in its favor because "there was no legally sufficient evidentiary basis" for the jury’s verdict. The Court of Appeals disagreed.

In order to meet her burden of proof on a Title VII claim, the plaintiff had to prove four elements: that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer. Focusing on the fourth element being the imputation to her employer, the Court held that liability for harassment by a co-worker could be imputed to the plaintiff’s employer on a theory of negligence because the employer should have known the plaintiff was being harassed.

The Court held that an employer cannot avoid Title VII liability for co-worker harassment by adopting a "see no evil, hear no evil" strategy. Knowledge of harassment can be imputed to an employer if a "reasonable [person]" intent on complying with Title VII, "would have known about the harassment." Under this rule, an employer may be charged with constructive knowledge of co-worker harassment when it fails to provide reasonable procedures for victims to register complaints.

In this case, Scollon claimed that its general policy against co-worker misconduct, which did not specifically mention sexual harassment, was adequate when combined with its open door policy. The Court of Appeals rejected this argument. It noted the lack of specificity and the fact that there was no evidence that the company had ever conducted any training to prevent sexual harassment. In addition, the Court of Appeals held that Scollon’s policy was defective in that it fails to place any duty on supervisors to report incidents of sexual harassment to their supervisors.

This case serves as a reminder to employers of the vital importance of an adequate and complete sexual harassment policy, which includes proper complaint procedures. Employers should check their policies to see if they impose a duty on supervisors to report harassment, and make sure the policy is clear and specific about the company’s stance against harassment in the workplace.

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08.11.2003