Employers sometimes struggle determining appropriate disciplinary action in the event of relatively low level sexual harassment. Many companies take a no tolerance approach, concluding that keeping the harasser employed makes them a virtual insurer of that person’s good behavior going forward. Other employers are willing to give the harasser another chance, with appropriate warnings and safeguards in place.

What happens when the harasser ignores these steps and again engages in harassing conduct? Does the fact that the harasser previously engaged in this conduct mean that any reoccurrence automatically constitutes a hostile work environment? According to a new unpublished decision from the Third Circuit Court of Appeals, the plaintiff still must show severe and pervasive harassment, even if the alleged perpetrator harassed her in the past.

In Kokinchak v. Postmaster Gen. of U.S., the plaintiff reached a settlement with the USPS regarding claims of harassment by a co-worker in 1999. Over a decade later, she filed a new EEOC Charge, claiming that the same co-worker had begun harassing her again in 2008. Unlike the original claims, the plaintiff’s new harassment allegations were limited to him bumping or knocking into her while passing at work, and him deliberately placing himself in her presence on a few occasions over a multi-year period. The district court dismissed the complaint on the basis that even if true, the alleged actions did not rise to the level of a hostile and offensive work environment.

On appeal, the plaintiff argued that because of the prior acts of harassment in 1999, she did not have to demonstrate that the new alleged actions by themselves rose to the level of a hostile work environment. The Third Circuit disagreed, concluding that the plaintiff’s allegations did not include any sexual conduct, remarks or other behavior. Instead, she claimed that having to work in the presence of a former harasser is itself a per se form of harassment. The court found no merit to this argument, and stated that the legal standard for proving a hostile work environment remains the same even if the alleged harasser committed other acts in the past. While this past behavior and the employer’s original response may be taken into account in determining the hostile work environment issue, it does not automatically meet the plaintiff’s burden of proof.