Second Circuit Adopts EEOC’s Rule On Harassment By A Nonemployee

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In a recent opinion, the Second Circuit adopted the Equal Employment Opportunity Commission’s (“EEOC”) rule imputing employer liability when a worker reports harassment by a nonemployee. The case, Summa v. Hofstra Univ., 2013 U.S. App. LEXIS 3677 (2d Cir. N.Y. Feb. 21, 2013), marks the first time that the Second Circuit has endorsed the EEOC’s standard, requiring the plaintiff to demonstrate that the employer either failed to provide sufficient mechanisms for filing a complaint, or knew or should have known that the harassing conduct was taking place and failed to take remedial action.

In Summa v. Hofstra Univ., Lauren E. Summa, a graduate student at Hofstra University, alleged that she was harassed by members of the football team during her employment as a team manager. In particular, Ms. Summa had learned that a Facebook page had been created by several players on which insulting comments were posted regarding Ms. Summa and her boyfriend. Upon making this discovery, Ms. Summa approached David Cohen, the Head Coach of the team, and expressed her concerns. Thereafter, Coach Cohen addressed the team members involved and directed that the posting be removed. Additionally, players allegedly made inappropriate and lewd comments while on a bus ride home from an away game. The comments apparently arose after Assistant Coach Perry put on an R-rated film containing several sex scenes. Ms. Summa, upset at several of the comments made, ask Coach Perry to stop the movie, Perry complied and situated himself near Summa for the remainder of the trip to ward off further remarks. Summa relayed the incident to Coach Cohen and reported the matter to the University’s Public Safety Department. Ms. Summa also spoke with the Dean of Students who then referred her to Dr. Maureen Murphy, the University’s Equality Officer.  In response to the incident, Coach Cohen spoke with several members of the team and ultimately removed one player, noting that the incident was the “final straw” warranting his dismissal.

Ms. Summa filed a complaint with the New York State Division of Human Rights on May 9, 2007. Upon requesting the spring schedule for the football team, Ms. Summa was informed that the position had already been filled.  Coach Cohen stated that he had not yet heard from Ms. Summa and the start of the season was only a few days away. However, Ms. Summa ultimately obtained a graduate assistantship position in the Office of University Relations. Ms. Summa was never able to undertake this role as her offer was subsequently revoked after the school claimed that Ms. Summa’s “resume was imprecise” and that she “overstated the importance of her duties at an internship.” Ms. Summa filed her Federal court complaint on January 25, 2008 at which point her privileges of student employment were revoked, after the school claimed that Ms. Summa had double-counted some of her hours. The District Court ultimately granted Defendants’ summary judgment motion.

In reviewing the decision below, the Court stated “[w]hile this Circuit has not yet determined the standards for addressing harassment attributable to non-employees, we now adopt the well-reasoned rules of the Equal Employment Opportunity Commission. . .” The Court applied the same standards utilized when assessing allegations of harassment involving a non-supervisory co-worker, while also considering “the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.” The Court held that while the University and the head coach had significant control over the football players’ behavior, the University satisfied its remedial obligations and took sufficient steps to address Ms. Summa’s harassment claims. In particular, the objectionable Facebook postings were immediately removed, and upon Ms. Summa’s request Coach Perry turned off the movie that had elicited several inappropriate comments, and Coach Perry then situated himself near Summa for the remainder of the trip. Once the incident was reported to Coach Cohen, he took immediate action to investigate the matter and subsequently removed a player from the team. The Court stated that “[e]ach complaint that was brought directly to Cohen’s attention was dealt with quickly and in proportion to the level of seriousness of the event.” Therefore, liability could not be imputed to the University or its personnel.

As a final cautionary note to employers: although the Court dismissed the harassment claims, the Court refused to dismiss Ms. Summa’s retaliation claims. The Court determined that Ms. Summa has satisfied her burden of demonstrating that “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Although the University proffered non-discriminatory reasons for its conduct, a jury could nevertheless find that the school’s actions were motivated by a discriminatory intent.

If you or your institution has any questions or concerns regarding any employment related issues, please email Cynthia Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

A special thanks to Cynthia Thomas, a law clerk at Cullen and Dykman LLP, for help with this post.

Topics:  Adverse Employment Action, EEOC, Harassment, Non-Employees, Retaliation

Published In: Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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