Happy New Year!  You may have noticed I took a blogging-break the past couple of months.  Well, new year and all that, and I’m back.  I’ve got lots of renewed energy to talk all things employment law and HR as we usher in 2015.  Have you heard about Freeman v. Dal-Tile Corp?  It’s a Fourth Circuit case that is noteworthy because of its holding with respect to supervisor knowledge of potential harassment.  As I always emphasize in my harassment training, if a supervisor knows of potential harassment, it is as if the employer knows.  And if the supervisor does nothing with said knowledge, then it is as if the employer knew and did nothing.  As you might suspect, this generally spells big trouble (and lots of money) for the employer.  This point bears repeating: SUPERVISOR NOTICE = EMPLOYER KNOWLEDGE as far as the courts are concerned.  So with that understanding in place, let’s turn to the Freeman facts.

Lori Freeman worked for Dal-Tile as a customer service representative.  In the course of her duties she regularly interacted with Tim Koester, a sales rep for one of Dal-Tile’s distributors.  Mr. Koester harassed Ms. Freeman by showing her pictures of naked women on his phone and making repeated racial  and sexual epithets (including the “n” word).  Ms. Freeman frequently discussed the conduct and how much it upset her with her supervisor.  Further, the supervisor witnessed it herself on a few occasions.  But she did not take any action.  According to the evidence, she “scoffed and shook her head and put her head back down and continued on with trying to pick the nail polish off her nails.”  Needless to say this response, while sympathetic, was not adequate under the law.

Two things were probably going on with this supervisor.  She likely did not know she had a duty to respond to Mr. Koester’s harassment.  What should her response have been?  Call HR asap, for starters.  Her lack of understanding of her duties was probably exacerbated by the fact that Mr. Koester was not a Dal-Tile employee.  She may not have known that employers have a legal obligation to remediate not just harassment by employees, but also by third parties, such as the employee of a distributor.

These harassment rules can be tricky and even counterintuitive.  What’s the answer?  Say it with me, TRAINING.  If this supervisor had decent anti-harassment training, odds are she would have known what to do in the face of Mr. Koester’s conduct.