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July 20 — A Louisiana school board clerk may pursue a sexual harassment claim based on her male supervisor’s alleged conduct because a jury could find the board didn’t take reasonable steps to prevent harassment, the U.S. Court of Appeals for the Fifth Circuit ruled ( Pullen v. Caddo Parish Sch. Bd., 5th Cir., No. 15-30871, 7/20/16 ).
The decision illustrates that an employer that fails to adequately notify or train employees about its anti-harassment policy may be strictly liable for a supervisor’s harassment.
The court partly revived Kandice Pullen’s claims under Title VII of the 1964 Civil Rights Act against Caddo Parish School Board.
An employer under Title VII can avoid liability for a supervisor’s harassment if it took “reasonable care” to prevent and correct harassment and the employee “unreasonably failed” to invoke the employer’s anti-harassment policies.
A district court dismissed Pullen’s claims after finding the board proved that affirmative defense.
But Pullen’s evidence suggesting the board didn’t adequately publicize its anti-harassment policy, train employees or tell employees whom to contact about harassment means a jury could find the board lacks the defense, the Fifth Circuit said July 20.
Pullen was a temporary clerk in the board’s purchasing department for two separate periods in 2011 and 2012. She alleged Timothy Graham, her supervisor, repeatedly made sexually offensive remarks, hugged her and touched her thigh.
Pullen subsequently worked in the personnel department, where she had a new supervisor. But she alleged Graham continued to make inappropriate comments to her.
Pullen didn't tell anyone about the alleged harassment while it was happening. But a female co-worker formally complained about Graham and identified Pullen as a fellow harassment victim.
A board investigator interviewed Pullen about Graham. The board decided Graham’s conduct wasn't sexual harassment but was unprofessional and inappropriate. He received a week’s suspension and counseling.
In dismissing Pullen’s Title VII claim, the district court said the board proved the defense set out in Burlington Industries Inc. v. Ellerth, 524 U.S. 742, 77 FEP Cases 1 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 77 FEP Cases 14 (1998), because it had a detailed anti-harassment policy posted online and on office bulletin boards.
But that isn’t enough to show the board took “reasonable care” to prevent harassment, Judge Jerry E. Smith wrote in an opinion joined by Judges Rhesa H. Barksdale and Gregg Jeffrey Costa.
Pullen’s evidence, if believed, would show employees weren’t trained regarding sexual harassment, informed about the policy or where to find it, or told who handled harassment complaints, the court said.
The board cited other employees’ testimony that the policy was posted on bulletin boards and available online and that they had received training, the court said.
The board’s evidence is “insufficient to satisfy its burden” to prove no factual dispute exists about its entitlement to the Ellerth/Faragher defense, the court said.
A jury must decide if the board took reasonable steps to prevent sexual harassment, the court said.
The Fifth Circuit affirmed dismissal of Pullen’s sexual harassment claims to the extent they involve the period when Graham no longer supervised her.
An employer is liable for co-worker harassment under Title VII only if it knew or had reason to know about the alleged harassment.
Pullen said all of Graham’s conduct should be analyzed under the strict liability standard for supervisors. But the district court properly used the co-worker analysis for the time Graham didn’t supervise her, the appeals court said.
Nelson W. Cameron in Shreveport, La., represented Pullen. Kean Miller LLP represented the school board.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Kandice_Pullen_v_Caddo_Parish_School_Board_Docket_No_1530871_5th_.
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