Employer Not Liable for Employee’s Alleged Sexual Harassment by Co-Worker

By:  R. Eddie Wayland, TCA Legal Counsel

In a recent case before the United States Court of Appeals for the Fourth Circuit, the appellate court upheld the dismissal of a workplace sexual harassment claim. The court’s decision and related reasoning can be instructive to employers who may face such harassment-related claims. The Fourth Circuit has jurisdiction over federal trial courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.


The employee alleged that a superintendent of her former company sexually harassed her on an ongoing basis between 2007 and 2011. According to the former employee, the superintendent regularly asked her to sleep with him, threatened her when she refused, required her to work near him often without reason, and frequently criticized the employee’s relationship with her husband. After four years of this alleged harassment, the employee reported the behavior to the employer’s human resource department. The employee followed up with a written report of the allegations and subsequently resigned on the following day.

After resigning, the former employee filed a claim with the Equal Employment Opportunity Commission (EEOC) claiming discrimination, harassment and retaliation relating to the superintendent’s ongoing sexual abuse. Upon receiving a right to sue letter from the EEOC, the employee brought suit against her former employer alleging wrongful termination, gender discrimination, hostile work environment, negligent infliction of emotional distress, intentional infliction of emotional distress, negligent supervision, and negligent retention.

The district court dismissed with prejudice all allegations in the employee’s complaint, except for the hostile work environment claim, finding the employee failed to submit sufficient factual allegations which if accepted as true would render the claim plausible. After the close of discovery, and before any trial in the case, the employer moved for judgment on the employee’s remaining hostile work claim. The district court granted the employer’s motion, finding that the conduct of the superintendent could not be attributed to the employer. The employee timely appealed.

The Appellate Court’s Ruling

After review, the appellate court upheld the district court’s ruling dismissing the employee’s discrimination claim. The appellate court noted that to successfully allege a claim of discrimination, the allegations must show that the employee was discriminated against in relation to critical employment decisions such as hiring, granting leave, firing, promoting or pay. Here, the employee alleged that the superintendent required her to work late, complete menial tasks, work in close proximity to the superintendent and that the superintendent did not act in this manner with any of her male coworkers. The appellate court found that these activities did not relate to a critical employment decision and therefore the discrimination claim failed.

The appellate court likewise found the allegations supporting the employee’s constructive discharge claim to be insufficient. To allege a claim for constructive discharge, an employee must show that the working conditions were so intolerable that a reasonable person would feel compelled to resign. On review, the conditions alleged by the employee were not found to rise to the level of intolerable.

As to the employee’s retaliation claim, the appellate court noted that in order to allege retaliation, the employee is required to suffer an adverse employment action. In the discrimination context, to demonstrate that the employee has suffered an adverse employment action, the employee is required to show that the employer’s response would deter a reasonable person from making an allegation of discrimination. Here, the employer took no action against the employee in response to the allegation. The employee’s wages and terms of employment were not altered. Further, the employee’s voluntary resignation was not considered by the appellate court to be an adverse employment action. Therefore, the employee’s retaliation claim failed.

Lastly, the appellate court affirmed the district court’s summary judgment ruling denying the employee’s hostile work environment claim finding that the superintendent’s actions could not be imputed to the employer. The appellate court noted that if the harasser is a supervisor of the employee, then the employer is strictly liable for the harassment which results in a “tangible employment action.” A tangible employment action is the act of firing, hiring, demoting, promoting, transferring or punishing the employee. As the superintendent did not have this authority over the employee, he was not classified as a supervisor.

When the harasser is a coworker, such as is the case in this litigation, the employer may be held liable only if the employer knew or should have known about the harassment and failed to take action to end the harassment. Negligence can be shown on behalf of the employer if it is found that the employer failed to provide reasonable procedures for victims of harassment to report complaints. However, an employer’s written anti-harassment policy is viewed as compelling proof that the company exercised reasonable care in preventing and correcting harassment.

Here, as the employee only reported the harassment days prior to her resignation and there had been no previous reports of harassment made by the employee, the appellate court found that the employer did not know, or should have known, that the harassment was occurring. Additionally, the employer undertook a number of preventative measures, such as maintaining a written anti-harassment policy, which supported a finding that the employer was not negligent in its actions.


It is important that employers maintain strong anti-harassment policies and simple harassment reporting procedures. Doing so will help shield employees from potential harassment and will also minimize any potential legal liability associated with employee sexual harassment. Employers should review, and if necessary update, their current anti-harassment policies and procedures, and should consult with experienced legal counsel if assistance is needed with this crucial task.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

June 19, 2018