When we discuss disciplinary options with employers following confirmation of harassment complaints, we consider the potential risks involved with retaining the employee who was the subject of the complaints. These risks include allegations by a subsequent harassment victim that we should have known that the harasser would continue this behavior, and therefore should have terminated him after the first complaint. A new decision from the Tenth Circuit Court of Appeals explores the employer’s obligation to monitor the harasser’s behavior following that initial complaint. 

In Frank v. Heartland Rehabilitation Hosp., LLC, the plaintiff alleged that she had been subjected to a series of invasive and demeaning sexual comments from a co-worker. After receiving a performance improvement warning, she notified her employer of the alleged harassment. The hospital promptly investigated the circumstances and the alleged harasser resigned. The plaintiff’s lawsuit claimed that the employer was liable for the harassment that occurred prior to her complaint because the harasser had been the subject of a settled EEOC charge made by another employee one year earlier.

The Tenth Circuit affirmed dismissal of the lawsuit on summary judgment. The court said that the existence of a prior complaint more than a year ago does not relieve an employee of his or her obligation to inform the employer of the harassing conduct. The employer is not placed on constructive notice of the ongoing harassment based solely on the earlier complaint. The plaintiff must provide evidence that the employer knew or should have known of the repeated behavior.

Many employers are not willing to risk reoccurrence of harassing behavior. They often decide to terminate the harasser even in situations where the harassing conduct is viewed as ambiguous or relatively minor. If the company decides to retain the harassing employee, it should impose strong remedial measures and clearly explain the consequences of any reoccurrence of conduct that led to the initial complaint.

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