General Complaints By Other Employees Do Not Necessarily Provide Constructive Notice of Harassment

Although the employee argued that the employer should have known that she was being sexually harassed based on complaints by other employees, the U.S. Court of Appeals for the Tenth Circuit found that such complaints were not sufficiently similar or close in time to trigger liability for the employer. Moreover, the employer had no duty to monitor the behavior of the offending employee under the circumstances.

In Frank v. Heartland Rehabilitation Hospital, LLC, the employee reported that a co-worker made a number of sexually inappropriate comments to her. The following day, management met with the co-worker and he resigned. The employee subsequently sued her employer, alleging, among other things, that she had been subjected to a hostile work environment, and that the employer had notice of the harassment based on the prior complaints of other employees.

The Tenth Circuit noted that, in order to sustain a hostile work environment claim based on co-worker harassment, the employee must show that the employer had actual or constructive (should have known by exercising reasonable care) of the harassment and responded negligently. Such notice could exist when other employees report harassment that is sufficiently related in similarity and nearness in time to the harassment that the employee experienced.

In this case, the employee relied on complaints by multiple other employees; however, the Tenth Circuit found that the one similar incident was too removed in time (well over a year earlier), while other incidents were dissimilar – racially insensitive, not offensive, too vague, not confirmed, and/or simply rude. The Tenth Circuit found that the employer could not have known that the co-worker posed a risk of sexual harassment to the employee.

The Tenth Circuit also rejected the employee’s argument that the first complaint by another employee imposed a duty on the employer to check in with female employees even after it had been addressed. The Tenth Circuit flatly stated, “We have never imposed an affirmative duty on employers to monitor their employees to make sure they are behaving appropriately unless the employer knows or should have known that the employee poses a risk to others.”

Although this case is good news for employers, it still reminds them of the need to address harassment complaints promptly. And frankly, if an employee is behaving improperly – even if the conduct is not based on a protected characteristic – it would be wise for the employer to address the poor behaviors, both to minimize any risk of claims and to ensure a pleasant workplace.