Employer Liable Under Title VII for Constructive Knowledge of Co-Worker’s Harassment


An employer was found by the U.S. Court of Appeals for the Second Circuit to be liable under Title VII because it had constructive knowledge of an employee’s harassment by a co-worker, based in part on its knowledge of the co-worker’s past inappropriate conduct.

Under Title VII, an employer is liable for co-worker harassment if it knew of the harassment and failed to exercise reasonable care to address it. In MacCluskey v. Univ. of Conn. Health Center, the employer argued that it should not be held liable for a dentist’s harassment of a dental assistant (the dentist was not her supervisor), relying on the Faragher/Ellerth defense. The Supreme Court, in the Faragher/Ellerth cases, held that an employer would not be liable for co-worker harassment claims where it puts in place a harassment policy, the employee is informed of the policy, and the employee unreasonably fails to use the complaint procedure under the policy to notify the employer of the alleged harassment.

The Second Circuit, however, rejected the employer’s argument. Instead, it found that the employer had constructive knowledge of the harassment based upon a number of circumstances, including: the dentist had previously engaged in harassment of other employees and had been disciplined by being placed on a last chance agreement; given this background, his supervisors should have been monitoring him more closely; the assistant’s supervisor knew of the dentist’s inappropriate conduct towards the assistant based on the assistant’s complaints to her other co-workers; the assistant’s confirmation to the supervisor that there was a “situation” and the supervisor’s failure to follow up.

The lesson here is that employers cannot escape Title VII liability for co-worker harassment simply because the employee fails to make a formal complaint under a harassment policy. Other circumstances may exist that obligate the employer to investigate further or take other action to ensure that harassment is not occurring.