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Employee Must Know About Harassment to Use It as Evidence of a Hostile Environment

    Client Alerts
  • July 04, 2014
Can an employee be harassed at work if he or she is unaware of the harassment? This is a question perhaps better left to a philosopher, but one that became the central issue in a recent decision from the Eleventh Circuit Court of Appeals. In Adams v. Austal, USA, LLC, the plaintiffs alleged a longstanding pattern of racial harassment by the employer. However, the lower court dismissed claims by a group of the plaintiffs on the basis that they were unaware of the conduct, and therefore had not been exposed to an objectively hostile work environment.
The Eleventh Circuit agreed, affirming the decision and only allowing claims by employees exposed to the alleged harassment to survive. In its decision, the court rejected the use of “me too” evidence. If the employees were unaware of alleged racial slurs used in the workplace, they could not demonstrate that they viewed the work environment as hostile. This evidence can be used for other purposes, such as challenging the employer’s response to the behavior once it became aware of the conduct. However, it is insufficient as evidence of an offensive work environment.
This case demonstrates the importance of carefully documented investigations of allegations of workplace harassment. If interviews performed in conjunction with the investigation show that certain employees were unaware of the claimed harassment, this may preclude them from later attempting to join in claims against the company based on the conduct.