In the recent case of Kunin v. Sears Roebuck & Co., the Third Circuit Court of Appeals overturned a jury finding that Sears was vicariously liable for hostile work environment sexual harassment. The plaintiff, Kunin, had been subjected to regular profanity by a co-worker, including calling Kunin derogatory and offensive gender-based names. Kunin had asked her supervisor, who had not heard the comments, whether profanity was allowed on the sales floor. He said it was not. Two weeks later, the co-worker used similar language toward Kunin. This time, Kunin told her supervisor what was said. Her supervisor told the co-worker to stay away from Kunin, and he did. Shortly thereafter, however, Kunin's boyfriend arrived at the workplace to pick Kunin up from work, and got into a fight with the co-worker. Sears investigated the incident and terminated both Kunin and the co-worker, and reprimanded the supervisor. Kunin sued for sexual harassment and retaliation, and the jury awarded her $75,000 on the sexual harassment claim. Sears appealed.
The Third Circuit Court of Appeals noted that "an employer is not always liable for a hostile work environment," and stated "liability exists where the defendant knew or should have known of the harassment and failed to take prompt remedial action." Here, because the supervisor effectively instructed the co-worker to stay away from Kunin once she told him what the co-worker had said, Sears could only be liable if it should have known before then that sexual harassment was occurring. Sears was not on earlier notice, however, both because the profanity was not so open and pervasive to put the supervisor on constructive notice and, more importantly, because Kunin did not communicate to her supervisor that the offensive language had sexual overtones when she asked the supervisor whether profanity was allowed on the sales floor. The Third Circuit Court of Appeals thus reversed and remanded the case with instructions to enter judgment as a matter of law to Sears on Kunin's sexual harassment claim.
When confronted with the original question by Kunin, the supervisor in this case simply answered it and did not ask Kunin why she was asking the question. Luckily for Sears, the Third Circuit Court of Appeals felt the supervisor's handling of her question was reasonable and preserved to Sears a valid defense that it was not on notice of the problem until Kunin was more specific about it. Such an employer-friendly outcome is extremely fact-specific and is never guaranteed. A "don't ask - don't explore" policy does not further the goals of preventing discrimination or enabling employers to proactively deal with potentially explosive situations.