Carissa Davis

The Eighth Circuit Court of Appeal’s recent decision in Lopez v. Whirlpool Corp. reminds employers and employees alike that an employer may not be liable for co-worker sexual harassment when the complaining employee resigns without allowing the employer sufficient time to address the situation.

In Lopez, the Plaintiff was allegedly sexually harassed by her co-worker. When the harassment began, the employee did not report the situation to her supervisor or anyone else at the company. After some time, the employee went to her supervisor to complain that she did not like working with her co-worker. She did not state, explicitly or implicitly, that sexual harassment was the reason she did not like working with him. Eventually, Plaintiff met with her union representative and her supervisor and revealed the alleged sexual harassment. Plaintiff alleged that over the next few days, the co-worker invaded her personal space and stared at her. Four days after she reported the alleged harassment, Plaintiff resigned.

Plaintiff sued, bringing claims for a hostile work environment and retaliation. The District Court granted summary judgment for the employer. Plaintiff appealed and the Eighth Circuit affirmed.

As explained by the Court, to recover on a claim of hostile work environment based on co-worker harassment, an employee must show that the employer knew or should have known of the harassment and failed to take proper remedial actions. Stated differently, an employer is not liable the moment an employee complains of co-worker harassment. Rather, liability arises if the employer unreasonably allows the harassment to continue.  In Lopez, the employee could not prevail on her claim because she could not show that her employer knew of the harassment and unreasonably failed to take immediate and appropriate corrective action, as she resigned just four days after notifying her employer there might be something to investigate and remedy.

The lesson? Employers receiving hostile work environment complaints should act promptly and appropriately to investigate and address the situation.  In doing so, take care to pinpoint when the employer (which includes its managers or supervisors) was made aware of the alleged harassment. Employers can also mitigate the risk of having a court decide against them by acting expeditiously to prevent interactions between the alleged harasser and alleged victim while the investigation is ongoing.