It wasn’t all that long ago when the #MeToo movement took the world (and employers in particular) by storm. The COVID-19 pandemic has since caused management officials to shift their focus, but preventing harassment on the job is as important now as it has ever been. Are you prepared to shut it down or at least try your best to do so? A recent case from the U.S. 5th Circuit Court of Appeals (whose decisions apply to Mississippi, Louisiana, and Texas employers) includes several important reminders about workplace harassment.
Facts
Kristina Sansone worked at Harrah’s, and in September 2017, a casino customer began frequenting her table and making sexually charged gestures, propositions, and remarks about her appearance. She claims the customer engaged in the harassing behavior at least twice a week until her termination on December 31, 2017.
Although Sansone says she verbally reported the customer to floor supervisors several times throughout the three-month period, no formal written report was made until December 22. When the customer returned on December 25, Sansone was removed from her table and permitted to leave early.
Meanwhile, on December 24, a time discrepancy arose when Sansone failed to clock in for work properly. She was ultimately found to be in violation of five Harrah’s employee rules pertaining to honesty and clock in/out procedures, and she was let go for allegedly misrepresenting the number of hours she had worked.
Sansone filed suit alleging she had been subjected to a hostile work environment, and Harrah’s sought to have the claim summarily dismissed. The district court granted the employer’s request, and she appealed.
Hostile work environment claims
To establish a hostile work environment claim, Sansone had to show (1) she is a member of a protected group, (2) she was the victim of uninvited sexual harassment, (3) the harassment was based on sex, (4) the misconduct affected a term, condition, or privilege of employment, and (5) Harrah’s knew or should have known about the behavior and failed to take prompt remedial action.
To affect a term, condition, or privilege of employment, sexual harassment must be severe or pervasive enough to alter the conditions of employment and create an abusive working environment. Courts look at the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Notably, the severe-or-pervasive standard is stated in the disjunctive. That is, an individual need not demonstrate both are present. It follows logically that the required showing of severity varies inversely with the conduct’s pervasiveness.
5th Circuit’s decision
The 5th Circuit found Sansone sufficiently showed a jury could conclude she had been subjected to actionable (or legally pursuable) harassment:
- The unidentified Harrah’s customer frequently asked Sansone about her sex life and expressed his desire to sleep with her;
- He commented on her breasts and physical appearance and directed sexual gestures toward her; and
- His comments were made in the presence of others and occurred at least two times a week for a significant period of time.
Accordingly, the court concluded the fourth element of a prima facie (or minimally sufficient) hostile work environment claim was met.
With respect to the fifth element, to prove an employer has failed to take prompt remedial action, the employee must first show she took “advantage of [the] corrective opportunities provided by the employer.” Relatedly, an employer may raise an affirmative defense to a hostile work environment claim if (1) it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided to avoid harm.
The 5th Circuit determined there were significant factual disputes about whether Sansone’s initial verbal complaints to the floor supervisors should have triggered a response from Harrah’s, and the unanswered questions precluded a finding of summary judgment (dismissal without a trial) that the employer had taken prompt remedial action.
Accordingly, the 5th Circuit reversed the district court’s dismissal of Sansone’s hostile work environment claim and sent the case back for further proceedings. Sansone v. Jazz Casino Co., 20-30640, 2021 WL 3919249 (5th Cir., Sept. 1, 2021).
Takeaway
Harassment claims are here to stay. And, unfortunately, you have to worry about more than just your employees’ conduct. Rather, actionable harassment can be triggered by your customer’s actions, too.
Nevertheless, you may avoid liability by showing, among other things, your business exercised reasonable care to prevent and correct any harassment. Thus, upon receiving any harassment complaint, you should engage in due diligence to determine what occurred and take prompt steps to prevent it from happening again.
Jennifer D. Sims, a shareholder with The Kullman Firm in Columbus, Mississippi, can be reached at jds@kullmanlaw.com.