2nd Circuit adopts EEOC Rule regarding Employer Liability for Non-Employee Harassment

2nd Circuit adopts EEOC Rule regarding Employer Liability for Non-Employee Harassment

In Summa v. Hofstra Univ., 2013 U.S. App. LEXIS 3677 (2d Cir. N.Y. Feb. 21, 2013), the plaintiff employee, who worked as the manager for the football team, alleged she was subject to sexual harassment by members of the football team. In response to the employee’s complaints, the University took immediate action against the accused football players, including expelling the primary harasser. When the employee later sued for harassment and retaliation, the University asserted that the actions of the student football players, who were not employees, could not be imputed to the University. The University sought summary judgment on this issue and won.

On appeal, the 2nd Circuit affirmed. In reaching its decision, the Court adopted the EEOC’s rule that employer liability for harassment by non-employees should be judged by the same standards for non-supervisory co-workers. The Court explained that, by analogy to non-supervisory co-workers: ”the employer will be held liable only for its own negligence, and the plaintiff must demonstrate that the employer failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.“

The Court found that the while the University knew of the football players’ actions, it took appropriate remedial action such that it was not liable for the non-employee football player’s actions.

One moral of this story: Once an employer learns of workplace misconduct, whether by employees or third parties, it  must take appropriate remedial action.

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