Sexual harassment liability for an employer requires that the employer either knew or, in the exercise of reasonable care, should have known about the harassment and failed to take remedial action. In Duch v. Jakubek, No 07-3503 (decided December 4, 2009), the Second Circuit decided a case where a supervisor attempted to remain purposefully ignorant of sexual harassment occurring in the workplace.
Duch was sexually harassed by a co-worker, Kohn, including sexual advances involving physical contact, sexually graphic language. The matter came to the attention of their supervisor, Jakubek, who told Kohn to "cut it out, grow up" asked Duch what had happened between the two. When Duch responded, "I can't talk about it," Kohn replied, "That's good because I don't want to know what happened." Duch later sued for sexual harassment.
The employer defended that Duch had not reported the sexual harassment, although it had offered a reasonable avenue of complaint. The Second Circuit agreed that it had offered a reasonable avenue of complaint but, nonetheless, could be held liable based on the Jakubek's efforts to avoid learning the nature of the issue between Duch and Kohn stating as follows:
when an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem -- as Jakubek is alleged to have displayed -- will not shield an employer from liability under Title VII.
The court then turned to whether the company had acted promptly to remediate the situation and ruled that it was spurred to action three months after Jakubek first learned of the harassment, which a jury could find too slow.
