From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
To contact the reporter on this story: Kevin McGowan in Washington at email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Kandice_Pullen_v_Caddo_Parish_School_Board_Docket_No_1530871_5th_.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)