Employers Must Take Reasonable Steps to Stop Harassment by Third Parties.

A recent case from the U.S. Court of Appeals for the Second Circuit reminds employers that they must do more than the bare minimum to protect their employees from outside harassment.

In Riggins v. Town of Berlin, the Town Planner was subjected to years of harassment by a Town resident and local building contractor, who had sent various letters to the Town Manager, Mayor, other Town officials, and media outlets, accusing the Town Planner of substance abuse problems and inappropriate sexual conduct. In response, the Town officials (without consulting an employment attorney) took some steps, including having the police investigate to determine if there were any criminal violations (there were not), and instructing the contractor’s then-attorney that the inappropriate communications must stop. Because the contractor continued, the Town Planner finally resigned and sued the Town for failing to protect her from sexual harassment. The federal district court dismissed her claims, finding that the Town had taken appropriate remedial action to protect her.

The Second Circuit, however, disagreed, stating that, “Although there is no dispute that the Town took some action in response to [the contractor’s] conduct, … we find that there is evidence in the record from which a reasonable jury could conclude that those actions were not sufficient in light of the circumstances.” For example, the Town never directly told the contractor to stop the communications, and it failed to determine if there were steps other than criminal prosecution (including civil litigation) that it could take to stop them. Also, the Town also did not consult an employment attorney about the situation for years, and it failed to investigate whether the contractor’s actions constituted harassment in violation of Title VII or state law until after the Town Planner’s resignation. And while the Town could not control the contractor, it did have control over its workplace, including the email system over which the contractor sent many of his communications. All in all, the Second Circuit found that a reasonable jury could find the Town’s responses to the Town Planner’s complaints were not appropriate.

There are several lessons for employers here. While certainly telling a third party to stop the harassing behavior is the usual first and necessary step, more may be required if the harassment continues. Employers should think broadly and creatively about ways to stop the harassment. And for goodness’ sake, they should consult their employment attorney immediately!