An Employee’s Dissatisfaction Does Not Make The Employer’s Response to Harassment Unreasonable
In response to a complaint of co-worker harassment under Title VII, an employer is required to take action that is “reasonably calculated to end the harassment.” Whether the response is reasonable will depend on the circumstances and, as the U.S. Court of Appeals for the Sixth Circuit held, an employee’s dissatisfaction with the employer’s actions alone does not mean the response was unreasonable.
In Doe v. City of Detroit, upon returning from transgender surgery, an employee complained that her nameplate had been defaced. It was immediately cleaned and replaced. Two days later, a gift bag containing a phallic toy and harassing note were left for her. The employer collected handwriting samples, interviewed other employees, and reminded them that violations of the City’s zero-tolerance harassment policy could result in termination, but was unable to ascertain the identity of the harasser. The employee requested a lock for her office door and to have a camera installed, but these were not immediately provided. Five months later, the employee reported receiving a threatening note. At that time, the police were notified and the requested lock was ordered. Two weeks later, however, she received another threatening note. She provided HR with the name of an employee she suspected of being the harasser, but there was no evidence to connect him to the events. At her request, she was moved to another office while the lock and security camera were installed. Several, but not all employees, were interviewed by HR, not including the alleged harasser. The employee was then informed by other employees that the suspected harasser had viewed her Facebook page and made disparaging remarks to his subordinates. HR found his conduct to be inappropriate, and he was suspended for three days and then moved to a different floor, at which point there was no further harassment. Following additional employment-related actions that the employee viewed to be retaliatory, however, the employee sued, alleging, among other things, that the City’s response to her harassment complaints was “completely inadequate.”
The Sixth Circuit disagreed with the employee. The City had responded promptly and effectively to the nameplate incident by cleaning and replacing it, and to the gift bag incident by conducting an immediate investigation. The Sixth Circuit specifically noted that the fact the investigation did not identify the harasser did not make it unreasonable, nor did the employee’s dissatisfaction with the “thoroughness” of the investigation. And while acknowledging that providing a lock and camera might have been reasonable steps, the Sixth Circuit asserted that “a harassment victim may not dictate an employer’s action against a co-worker,” and the employer’s failure to take those steps (at least immediately) did not mean the employer was “indifferent” to the complaint, given the other measures it did take.
As for the threatening notes, the Sixth Circuit found the City’s initial response of contacting the police and providing the lock to be reasonable. And although the City’s limited investigation after the second note may have been inadequate, which would not have been reasonable, the City also took other actions that stopped any further harassment – and therefore its response, contrary to the employee’s claims, was legally sufficient.
What this case emphasizes is that an employer need not comply with an employee’s demands regarding its response to harassment. But the response should be reasonable, under the circumstances. This includes a prompt and thorough investigation, as well as other measures calculated to end any harassment.