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Supervisors Must Pursue All Suggestions of Sexual Harassment

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Supervisors who behave like ostriches, sticking their heads into the sand when they hear about possible sexual harassment in the workplace, can create serious liability for their employers, the 2nd Circuit reiterated in a Dec. 4, 2009, decision.

In Duch v. Jakubek, the court concluded that a female plaintiff may proceed on a claim that her supervisor failed to follow through in dealing with alleged harassment by a co-worker, even though the plaintiff had told the supervisor that she didn't want to discuss any details of the harassment.

Karen Duch was a court officer in the New York State Office of Court Administration (OCA), working in its Midtown Community Court in New York City. On the night of Sept. 25, 2001, she and fellow court officer Brian Kohn had a sexual encounter (which did not include intercourse). The next day Duch told Kohn that the encounter had been a mistake and that she didn't want any further relations with him. According to Duch, Kohn didn't accept the rebuff and made repeated sexual advances toward her.

The following month, Duch learned she was scheduled to work alone with Kohn on a Saturday, prompting her to go to her supervisor, Edward Jakubek, and ask for the day off. Jakubek went to Kohn, who admitted, "Maybe I did something or said something I should not have." Jakubek then called Duch into his office and asked her if she had a problem working with Kohn. Duch said she didn't want to talk about it. According to Duch, Jakubek responded, "That's good because I don't want to know what happened," and then laughed.

Later that month, Duch spoke with the court's Equal Employment Opportunity (EEO) liaison Rosemary Christiano about the alleged harassment in an attempt to have it stopped. But when Christiano asked if Duch wanted her to report Kohn's behavior, Duch said no and Christiano didn't report the harassment to anyone. Duch contends that the harassment continued, and she became depressed, stopped eating and started missing work.

In December, court officer David Joseph replaced Christiano as EEO liaison, and within a few days of his appointment, Duch told him she wanted to file a formal complaint against Kohn. The OCA conducted an investigation of Kohn and brought disciplinary charges against him, but when Duch refused to be cross-examined on the grounds that she was mentally unfit to do so, the charges were dropped.

Two years later, however, Duch filed a lawsuit claiming that Kohn, Jakubek and the OCA had violated Title VII by creating a hostile work environment. In August 2007, the U.S. District Court for the Southern District of New York granted summary judgment for the defendant on the grounds that proper avenues for complaint were in place within the court, that Jakubek didn't have actual or constructive knowledge of the harassment, and that his response was reasonable based on what he knew.

Purposeful Ignorance

In reviewing the district court's findings, the 2nd Circuit concluded that it was correct in determining that the employer provided adequate avenues for handling complaints, but it also found that Jakubek's unwillingness to pursue Duch's harassment claims--even though she didn't want to talk about the matter--was wrong. The court said a jury could reasonably find that Jakubek had constructive knowledge of sexual harassment.

Furthermore, the court said, "[W]hen an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem--as Jakubek is alleged to have displayed--will not shield an employer from liability under Title VII."

Employment lawyers say the main message of the decision is that employers are liable if supervisors engage in purposeful ignorance when they hear about possible sexual harassment.

"Supervisors can't just put their hands over their ears and say, 'La, la, la,' and pretend not to hear something," says Daniel Schwartz, a member of Pullman & Comley. "Once they hear about it, they need to do something about it, even if the subject of the alleged harassment doesn't want to talk about it."

New Wrinkle

Stephen Bergstein, a partner at Bergstein & Ullrich, is a plaintiffs' employment lawyer who believes the 2nd Circuit ruling in Duch adds a "wrinkle" that could make the difference in future sexual-harassment claims where constructive knowledge is an issue.

The takeaway for companies, he says, should be a commitment to re-examining anti-harassment policies and training programs.

"They need to be even more vigilant because the whole company is potentially on the hook for what one supervisor does," he says. "That's what makes this case so interesting. It shows how supervisory knowledge can get a company in trouble."

The best way to avoid that kind of trouble, lawyers say, is ongoing attention to training.

"We counsel our clients to investigate and remedy all complaints of harassment and all complaints you think might be harassment," says Richard H. Block, a member of Mintz Levin. "The price if you pay if you don't is much more than the cost of looking into it at the beginning. If it's just a whiff and it turns out to be nothing, what have you lost?"

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