If a single plaintiff alleges co-worker harassment, can s/he offer evidence of other employees’ wholly unrelated harassment complaints, even if those complaints occurred at different locations and involved different employees? The Eighth Circuit answered this question with a resounding “yes” in Sandoval v. Amer. Building Mainten. Industries.
In Sandoval, decided in August 2009, the plaintiff alleged a hostile work environment by her co-workers. She conceded the employer did not have actual knowledge of the harassment, but claimed it had constructive knowledge based on harassment complaints by other employees during the same time frame in which the alleged harassment against the plaintiff occurred. In other words, according to the plaintiff, the mere fact that other people complained about alleged harassment was enough to place the employer on notice (thus kicking off its legal obligation to take reasonable steps to end the harassment). The fact that plaintiff did not know about the other alleged instances of harassment was of no import, she claimed. The trial court disagreed, ruling in the employer’s favor. But the Eighth Circuit Court of Appeals held otherwise.
Not only were the alleged other instances of harassment enough to place the employer on notice with respect to the plaintiff’s situation, but they also constituted persuasive evidence that the harassment allegedly suffered by the plaintiff was severe and pervasive. The court stated “[i]rrespective of whether a plaintiff was aware of the other incidents, the evidence is highly probative of the type of workplace environment she was subjected to, and whether a reasonable employer should have discovered the harassment.”
So what’s the takeaway for employers? Our advice is that all instances of alleged harassment be catalogued in a central location (ideally, in HR). This way, complaints of harassment that are seemingly unrelated can be considered and handled in a proactive and consistent manner. Not only will such a practice help employers stay on top of their workplace environments, but it will also help in the event of a lawsuit, as the plaintiff will undoubtedly request this information (and is entitled to it under the reasoning in Sandoval). Better to know what the evidence is before a plaintiff demands it, so that the employer can keep on eye on the effectiveness of its harassment prevention program.
If you do not have a harassment prevention program in place, Warren & Hays can help.
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