In this case an employee complained that a co-worker had made several unwelcome sexual advances. Even during its investigation, the employer adopted measures to reduce the employees' interaction: the alleged harasser's work area was moved and his supervisor was directed to keep closer watch on him. The complaining employee's supervisor also took steps to minimize the time she worked alone and began walking her to her car every day.
The investigation confirmed the complaint and the co-worker was issued a written warning that "harassment of any kind by an employee to another employee absolutely will not be tolerated. Any further occurrence will result in your immediate termination."
The following week, the employee complained that the co-worker "kept coming around her." There were no allegations of sexual harassment. Thus, the employer had no basis on which to issue further discipline. The employee was told that the employer could not guarantee she would not have contact with the co-worker. She was advised that if she could not accept this, she would have to resign. The employee resigned and sued the employer and the co-worker for sexual harassment based on a hostile work environment.
The court dismissed the suit, finding there was no actionable sexual harassment. The court recognized a distinction between supervisor harassment and co-worker harassment. For an employer to be held liable for co-worker harassment, its response to a report must exhibit "such indifferences as to indicate an attitude of permissiveness that amounts to discrimination." Where, as here, the employer responds promptly and makes a good faith response, that is enough to shield the employer from liability.
There is a split among the circuit courts as to when an employer can be held liable for co-worker harassment. Some circuits find negligent responses to harassment complaints sufficient to impose liability; others, like the Sixth Circuit in Blankenship, require action or inaction sufficient to infer an intent to discriminate.