CLIENT ALERT / Maine Court Adopts New Sexual Harassment Standard Print

Employers will have a more difficult time defending actions brought by employees claiming sexual harassment by a co-worker, given a decision issued this week by the Maine Supreme Judicial Court.  Prior to the ruling in Watt v. UniFirst, courts did not hold Maine employers vicariously liable for the sexual harassment of one employee by another, non-supervisory employee.   Previously, an employer was held liable for such conduct only if the employee could prove that the employer “knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.” In Watt v. UniFirst Corporation, however, the Law Court adopted a new standard that now holds an employer responsible for acts of sexual harassment in the workplace by a co-worker “where the employer, or its agents or supervisory employees, knows or should have known of the conduct.”    The employer may rebut apparent liability for such acts by showing that it took immediate and appropriate corrective action upon learning of the wrongful conduct.

TMF represented UniFirst Corporation in this action brought by a former employee, Linda Watt.   Ms. Watt asserted that UniFirst failed to take prompt and appropriate corrective action in response to complaints she made that a co-worker was sexually harassing her at work, and then terminated her in retaliation for having made the complaints.  UniFirst was granted summary judgment in Superior Court on the grounds that the employee had failed to generate a genuine issue of material fact to support her claim that UniFirst had not taken prompt and appropriate action in response to employee’s reports over a four month period that she was being harassed by a co-worker.  The Superior Court pointed to the fact that UniFirst had issued a verbal warning, suspended the co-worker without pay for three days, and then terminated both employees after Watt struck the co-worker with a metal bar and he hit her back.

On appeal, the Law Court adopted the new standard for employer liability for co-worker harassment.  The court held that when the disputed facts are viewed in a light most favorable to Watt, a reasonable jury could find under this new standard that UniFirst’s corrective action, considered as a whole, was neither immediate nor appropriate.  Therefore, the Court remanded the case back to Superior Court for trial. 

The practical effect of this decision, although not addressed directly by the Court, is to shift the evidentiary burden of proof regarding the adequacy of the employer’s corrective action from the employee to the employer.   As such, it is now more important than ever for employers to have appropriate sexual harassment policies in place and to abide by those policies in every instance when management becomes aware that conduct in violation of that policy is occurring in the workplace.   Management must conduct a thorough investigation of every complaint, take appropriate action where warranted, and document the entire process.  In addition, when the investigation reveals that a violation of the sexual harassment policy has occurred, we recommend that management confer with the complainant (after the disciplinary measures have been meted out to the offending co-worker) for confirmation and documentation that the complainant is satisfied with the action taken.   These documented steps will provide critical exculpatory evidence in the event the employee subsequently brings an action against you for hostile work environment. 

For more information about what you can do to minimize your company’s exposure from hostile work environment claims, please contact any of the attorneys at Taylor McCormack & Frame, LLC.

If you have any questions about this or any legal matter,
please don’t hesitate to contact the attorneys at Taylor, McCormack & Frame.
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