Hostile workplace

We previously wrote here and here about sexual harassment in the workplace. In this post, we explain how an employer can avoid a hostile work environment claim by taking prompt remedial action.

To establish a hostile work environment/sexual harassment claim under Title VII, a plaintiff must show that:

(1) she belongs to a protected class;

(2) she was subjected to unwelcome sexual harassment;

(3) the harassment was based on sex;

(4) the harassment affected a term, condition, or privilege of employment; and

(5) the employer knew or should have known of the harassment and failed to take prompt remedial action.

(Of course, men can also have such a claim.)

It is that fifth element that we discuss here.

The remedial action must be “reasonably calculated” to end the harassment.  Employers are not, however, required to impose draconian penalties upon the offending employee to satisfy the prompt remedial action standard.

Further, Title VII does not entitle a plaintiff to the specific remedial measures of her choosing. It certainly does not require that an employer fire the offending employee.

The Fifth Circuit has held that the suitability of the remedial action necessarily depends on the particular facts of the case, including the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.

The Court has held that an employer took “prompt remedial action” when it took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigations.

Probably so. But, it has been held that such discomfort does not rise to the level of a Title VII violation.

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