Employers frequently raise failure to report harassment as a defense in Title VII and related state cases. After all, how can you end harassing behavior if you are not aware of it. As the Eleventh Circuit reminded us earlier this week, that defense breaks down if the employer is aware of the conduct.

A black home health care employee overheard her all white co-workers making racist comments, some of which were directed at her, nearly every day for her two months of employment at the company. However, he never reported their conduct. The severity of the racist comments peaked on her last day, when her co-worker called her a racial epithet during an argument. The employer terminated the black employee's employment due to performance issues and because of the altercation with her white co-worker. The employee sued alleging that she was harassed on the basis of her race in violation of Title VII.

The U.S. Court of Appeals for the Eleventh Circuit found the conduct the employee endured to be both subjectively and objectively hostile in order to establish a hostile work-environment racial harassment claim under Title VII. In support of its finding that the conduct was objectively hostile, the court held that the employee's ability to present eight examples of racist remarks made in her presence over the course of two months demonstrated that the conduct was pervasive enough to be actionable. In addition, the court found that the use of an egregious racial epithet after two months of other racist remarks made the conduct severe. Finally, the court found that even though the employee did not report the harassing conduct until the last day of her employment, the manager at the employee's location overheard at least some of the racist comments and thought they were funny. The court found that to be sufficient evidence that the employer had actual notice of the harassment, even though the employee did not report it prior to her termination. As a result, the court denied summary judgment for the employer on the employee's racial harassment claim.

The case serves as a reminder that employers cannot bury their heads in the sand until a formal report of harassment or discrimination is made. If a supervisor or manager becomes aware of harassment or discrimination, he or she must report, and the employer must take steps to address and investigate the issue. To ensure this happens, employers should outline managers’ reporting responsibilities in their anti-harassment policies. In addition, they should provide managers training on unlawful harassment and their reporting obligations under the policy.