Employers are not strictly liable for hostile environment sexual harassment by a victim’s co-workers. The employer may be held responsible under Title VII if it knew or should have known of the harassment and failed to take adequate steps to address the situation. Last week in an unpublished decision, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina), affirmed dismissal of a harassment claim by an employee who resigned a few days after her initial complaint to her employer.

In Cooper v. The Smithfield Packing Co., Inc., the plaintiff alleged that she had been subjected to a long series of sexual propositions and touching by a non-supervisory level foreman. She eventually complained to her employer about the harassment and tendered her resignation a few days after her initial complaint, before the company had a chance to fully investigate the claims or communicate its findings to her. She then sued the company, alleging sex discrimination, retaliation, and sexual harassment among other legal violations.

The Fourth Circuit affirmed dismissal of the hostile environment harassment claim on summary judgment. The court first concluded that the alleged perpetrator was not a supervisor because he did not have meaningful input that could affect the terms of the plaintiff’s employment. Because he was not her supervisor, the plaintiff had to demonstrate that the employer was negligent in dealing with her complaint. The defendant had an anti-harassment policy with a mechanism for investigating employee complaints and offered to transfer her during the pendency of the investigation. Her resignation removed any meaningful ability of the employer to address her complaints and therefore defeated her claims of negligence.

This decision demonstrates that even in the increasingly plaintiff-friendly Fourth Circuit, employers accused of non-supervisory sexual harassment are not expected to respond to harassment situations until they have some sort of knowledge of the alleged activities. Once informed, employers have a reasonable time period to investigate the claims before they can be deemed to have taken inadequate measures in response.

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