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Harassment, Supervisors and Liability; Here We Go Again, 7th Cir

By Gabriella Khorasanee, JD | Last updated on

Just last month, the U.S. Supreme Court affirmed the Second Circuit's decision in Vance v. Ball State, holding "than an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim."

The ink of the decision is barely dry, and the Seventh Circuit is back at it.

McKinley Lambert was a yard worker at Peri Formworks, who allegedly was sexually harassed by a co-worker over a period spanning from 2004 to 2007. During this time, Lambert complained to yard leads Redalfo Avila and Jesus Santiago. They did nothing.

During this period, in 2005, Peri adopted a written sexual harassment policy which provided that all complaints must be made to the HR manager and CEO, both located off-site, in a different state. Lambert did not file a complaint with the HR manager or CEO.

The U.S. District Court for the Northern District of Illinois found that Peri could not be liable for Lambert's alleged harassment because he did not "report the problem to someone with authority to address it."/p>

While the Vance court held that an employer would not be found strictly liable for harassment by an employee who was not a supervisor (someone who could hire and fire), the question presented in Lambert v. Peri Formworks Systems, Inc. was slightly different. The Lambert court instead had to determine whether Lambert adequately notified the company of the alleged harassment.

The Seventh Circuit found that there were enough facts in the record that would lead a jury to find that Lambert worked in a hostile work environment. Here, there were a few facts that stood out, in particular Santiago's testimony. Santiago testified to actually hearing some of the offensive statements, having more responsibility than regular yard workers, and that as a yard lead he was expected to report possible wrong doing to the yard manager -- which he did not do.

The court also indicated the fact that Peri adopted a written policy did not protect it from actions occurring beforehand. As to Lambert's non-compliance with the complaint process, the court found that his actions did not "license onsite managers to ignore complaints and evidence of co-worker harassment."

Take heed and advise your clients well; They may not be liable for the actions of an employee that is not a supervisor, but if that employee complains to a co-worker with more responsibility -- even if the co-worker does not have the ability to hire or fire -- that may be enough to serve as notice of alleged harassment.

Companies would be wise to adequately train their employees on harassment policies, and the importance of reporting any instance up the chain of command to protect themselves from potential corporate liability.

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