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Failure to Identify Harasser Did Not Make Employer's Response Unreasonable

    Client Alerts
  • July 12, 2021

Under Title VII, employers are liable to an employee for incidents of co-worker harassment when they knew or should have known that the conduct was occurring, yet failed to take reasonable measures to end it. Last week, the Sixth Circuit Court of Appeals concluded that an employer had reasonably responded to claims of harassment made by a transgender employee despite her claims that the employer could have done more to protect her.

In Doe v. City of Detroit, Michigan, an employee transitioning from male to female began receiving a series of threatening anonymous notes left on her work desk. She reported the first note to the city, which began an investigation, including collecting handwriting samples and interviewing co-workers about the incident. Despite this effort, the city was unable to identify the perpetrator, and the plaintiff received a series of additional threatening notes. In response to these additional actions, the city reported the matter to the police, installed a lock on the plaintiff’s office door, and suspended a co-worker who had made critical remarks regarding the plaintiff on Facebook. The city denied additional requests including video surveillance equipment and a remote working arrangement.

The plaintiff eventually sued the city, claiming that its response to the ongoing incidents of harassment was unreasonable. On appeal, the Sixth Circuit affirmed dismissal of the claim. The court noted that Title VII does not hold employers liable because they are unable to identify harassers. The city’s response to each of the repeated messages was reasonable. Its failure to immediately provide all additional security measures requested by the plaintiff should not be viewed in hindsight with knowledge of the further escalation of the harassment. The remote work arrangement was properly denied because there was no evidence that the plaintiff could effectively work from home.

This case demonstrates the need for employers to make a serious and coordinated response to employee harassment claims. While the company does not need to take all steps requested by the victim of the harassment, it should take reasonable and fully documented measures to try to determine the source of the harassment, and to stop it from reoccurring.