Fedweek Legal

In the case of Howard v. the Department of the Navy, 446, F.3d 559 (4th Cir. 2006), 10 years after the events at issue, the U.S. Court of Appeals partially reversed the lower court’s award of summary judgment and sent the case back for a jury trial.

According to the court decision: Stephanie Howard is a former secretary with the Naval Air Systems Command (NAVAIR). During her time at NAVAIR, Ms. Howard was sexually harassed by a co-worker. After a particularly egregious episode in March 1996, Ms. Howard went to the human resources division and asked to be transferred. When asked why, Ms. Howard said she was being “assailed” at work, but did not give specifics, or name the co-worker. Ms. Howard later spoke to a human resource specialist, identified the co-worker, accused him of touching her and again asked to be transferred. After this, the co-worker resumed making inappropriate comments but did not touch her again until November, 1996. At this point Ms. Howard again reported him. NAVAIR reassigned the co-worker off Ms. Howard’s floor and conducted an investigation.

Ms. Howard filed an EEO complaint, and eventually a civil complaint in district court, alleging a hostile environment. The court granted summary judgment for the Navy, implicitly finding the harasser to be a co-worker and not a supervisor. It then found that once the Navy was put on notice in November 1996 its response was “about the fastest [the court had] seen an employer do in a long time in these cases.”

This case reminds us of the important legal point that an employer is automatically liable for a hostile environment caused by a supervisor, but only liable for harassment by a co-worker if the employer is negligent in failing, after actual or constructive knowledge, to take prompt and adequate action to stop the harassment. The court of appeals pointed out that although employers may not adopt a “see no evil, hear no evil,” approach, an employer may not be liable under a theory that the employer must exercise an “all seeing omnipresence over the workplace.” The court then held that a reasonable jury could conclude that Howard’s contact with human resources in March 1996 was sufficient to place the Navy on notice of the harassment. In addition, the court noted, it was for the jury to decide the “reasonableness” of the agency’s response given that it only asked her to “keep track” of additional harassment, and report future instances, but took no action at that time to “get to the bottom of her allegations.”

Employees must remember that for the agency to be liable for co-worker harassment, the employee must report the harassment to someone with sufficient authority to give the agency an opportunity to stop the harassment. If the employee does not place the agency on notice of the harassment, the agency is not liable. But more importantly, if the agency is not aware of the harassment, it cannot stop it.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h. To order your copy, go to http://www.passmanandkaplan.com.