In some situations, an employer's efforts to stop workplace harassment may not have the intended effect. If the employer cannot determine the source of the harassment, is it liable for continuing conduct despite reasonable efforts to detect and end the behavior? A new decision from the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concludes that if the employer acts reasonably to end the conduct, it is not liable for unpreventable reoccurrences.

In EEOC v. Xerxes Corporation, a number of African-American employees complained about persistent racial harassment. While some of this conduct involved comments by identifiable co-workers, a number of continuing incidents included anonymous, racially-charged messages left for African-American employees. The EEOC argued that the inability to stop these incident from reoccurring demonstrated that the employer's response was not reasonable.

The Fourth Circuit disagreed, affirming partial summary judgment for the defendant. In its decision, the court noted that in response to the complaints, Xerxes took the following measures:

• As soon as management became aware of each incident, top human resource officers promptly investigated the claims.
• Where co-workers were identified, the company took prompt, reasonable disciplinary action in response.
• Xerxes called in law enforcement officials in response to anonymous threats made to African-American employees
• The company repeatedly trained employees with regard to its EEO and harassment policies, and posted notices regarding the consequences of violations.
• The employer repeatedly checked up on the victims of the harassment to determine if any new issues had arisen.

The Fourth Circuit ultimately concluded that there was nothing else Xerxes could have done to stop the conduct. The fact that the employer was unable to end the harassment despite taking reasonable steps does not mean that it was responsible for creation of a hostile and offensive working environment. The court only reversed summary judgment where it found that a lower level supervisor had not reported or acted upon some early complaints of harassment.

This case fully demonstrates the value of a robust, thorough, prompt and fully documented response to harassment complaints. Even if the employer cannot identify or stop the conduct, best efforts toward that end should shield it from liability for this type of anonymous conduct.