In Paschall v. Tube Processing Corporation, 2022 WL 775413 (7th Cir. March 15, 2022), the U.S. Court of Appeals for the Seventh Circuit, inter alia, affirmed the dismissal of plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
Among other things, plaintiff alleged that a male co-worker made sexual/obscene comments to her, for example, “Do you get wet when you have sex?”. Plaintiff reported these lewd comments to her shift group leader, who reassigned the plaintiff to a different job for the rest of the day.
The court stated the elements of a sex-based hostile work environment under Title VII, namely,
that she was (1) subjected to unwelcome sexual conduct, advances, or requests; (2) because of her sex; (3) that were severe or pervasive enough to create a hostile work environment; and (4) that there is a basis for employer liability.
Here, the court did “not decide whether a hostile work environment existed because the question of whether Tube Processing took prompt and effective remedial action is dispositive.”
Whether there is a basis for employer liability depends on whether the harasser is the victim’s supervisor or co-employee. When a supervisor is the harasser, the employer is strictly liable for his or her conduct, subject to any affirmative defenses that may preclude its liability. There is no evidence in the record to suggest that Benash was Paschall’s supervisor, and she does not argue that he was.
When a coworker is the harasser, however, the employer is liable only when the employee shows that her employer has been negligent either in discovering or remedying the harassment. An employer’s legal duty in co-employee harassment cases will be discharged if it takes reasonable steps to discover and rectify acts of sexual harassment of its employees.
Tube Processing was not negligent in discovering or remedying the alleged harassment. After Benash made his lewd comments to Paschall, she immediately reported them to Combs. Combs then assigned Paschall to a different job for the rest of the day. Paschall never reported Benash again for any sexual harassment, before or after Tube Processing reprimanded him.
Simply put, after Tube Processing received notice that some probability of sexual harassment existed it adequately responded to that information within a reasonable amount of time. No reasonable fact-finder could conclude that Tube Processing was negligent in preventing future harassment.
The court likewise affirmed the dismissal of plaintiff’s race-based hostile work environment claim – based in part on the use of the “N-word” – on the same ground, namely, that defendant “took prompt and effective remedial action.”