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Faragher/Ellerth Defense not Enough to Save Connecticut Hospital

The Court of Appeals for the Second Circuit recently upheld a $125,000 award against the University of Connecticut Health Center (UCHC), holding the Center responsible for an employee’s sexual harassment of a coworker.

In September 2013, Plaintiff Mindy MacCluskey filed suit against UCHC in Connecticut federal court. She alleged a male coworker of hers was touching her and making inappropriate comments, and her employer knew or should have known and failed to take action. In her complaint, MacCluskey alleged she complained about her coworker’s behavior to other coworkers between 2009 and 2010, and his behavior escalated through 2010. Since the alleged wrongdoer was not MacCluskey’s supervisor, for UCHC to be responsible, it must have known or should have known about the harassment and must have failed to act.  In August 2016, a jury found for MacCluskey, awarding her $200,000 in damages, which was reduced to $125,000 by the trial court.

UCHC appealed using the Faragher/Ellerth Defense and thus asserting it had a sexual harassment policy, and MacCluskey knew about the policy but failed to make a complaint under the policy for two years. In upholding the award of damages, the Second Circuit panel relied on evidence that in 2000, the alleged wrongdoer had sexually assaulted a coworker and was given a “last chance” agreement, prohibiting him from any such conduct in the future.  This was enough, the court held, to put UCHC on notice of his wrongful behavior.  Further, the alleged harasser’s supervisor should have conducted a proper investigation after rumors circulated about a situation between him and MacCluskey. The court held “even where an employer provides a reasonable avenue for complaint, it may be liable if it knew or should have known about the harassment and failed to take appropriate action.”

This case should come as a reminder for employers that the mere existence of a sexual harassment policy does not mean you can always avoid liability. This is especially true where you have had or should have had knowledge of workplace harassment and failed to stop it.  The moral of the story:  ignorance isn’t always bliss, especially where the court finds your ignorance willful.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.