This entry was originally written for our December 2015 Newsletter. Download PDF file to view all articles.

I recently represented a city in a case in which an employee was accusing a coworker of creating a sexually hostile work environment. Fortunately, we prevailed at trial but it brought to light the responsibilities an employer has for ensuring workers maintain a proper work environment. Most employers are aware and train their supervisors to avoid behavior that constitutes harassment or could create a hostile work environment. Indeed, many hostile work environment claims arise from the authority a supervisor can exercise over their subordinates.

However, under both federal and state law, employees can bring a claim against an employer for a hostile work environment based upon the actions of a coworker that has no supervisory authority over them. In these situations, the employer is liable if they knew or should of known about the harassing behavior and failed to take appropriate action.

Courts have held that an employer “knew or should have known” about harassment if (1) the employee provided the employer with enough information to raise a probability of harassment in the mind of a reasonable employer; or (2) if the harassment was so pervasive and open that a reasonable employer would have had to be aware of it.

It is not enough that an employer simply respond to complaints of harassment. Employers and supervisors should be vigilant in identifying and addressing potentially harassing behavior even if a complaint has not been filed. Proper oversight and documentation of such events can be crucial to the successful defense of a hostile work environment claim.

To ensure that your company is fully protected in this area, don’t hesitate to call my office and schedule a meeting. Our job is to ensure that your policies protect you long before a problem arises.