Court Watch
February 19, 1999

A recent Eleventh Circuit Court of Appeals sexual harassment case reinforces the importance  of creating and enforcing an understandable, easily accessible and effective sexual harassment policy.  In Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), an employer prevailed by demonstrating that an employee did not give adequate notice to the employer that she was being sexually harassed in the workplace.  In Coates, the employer conceded that the employee had been subjected to a hostile work environment by her co-worker but denied that it was vicariously liable for the harassment.  Therefore, the issue before the court was whether the employer had adequate notice of the harassment and, if so, whether it took adequate remedial steps to abate the harassment.

The plaintiff in Coates, a female forklift operator, alleged that she was harassed by her male co-worker, a plant buyer.  The plaintiff initially complained to a co-worker who, without mentioning Coates by name, advised a human resources officer of the alleged harassment.  The human resources officer arranged for Coates's co-worker, a minister, to speak to the alleged harasser.  Soon thereafter Coates herself complained to the human resources officer.  After the co-worker's talk with the alleged harasser, the human resources officer asked the plaintiff on a regular basis whether the harassment had stopped, and the plaintiff stated that everything was fine.  A few months later, the plaintiff approached her supervisor with the intention of telling her about the alleged harassment but did not because the supervisor stated that she was too busy to talk.  At no time during this discussion, however, did the plaintiff mention sexual harassment.  On another occasion, the plaintiff showed another supervisor a suggestive note she had received from the alleged harasser but did not complain about it.  Rather, she proceeded to discuss her career and ideas she had for processing inventory in the company store room.  In her lawsuit, the plaintiff alleged that the harassment continued for another year after her initial complaint until she explicitly complained to her employer about the harassment for a second time.  After the plaintiff's second, explicit complaint, the plaintiff's supervisor immediately suspended the alleged harasser without pay pending an investigation, and he resigned the same day.

The court first considered whether the employer had adequate notice of the alleged harassment.  The court noted that Sundor would be deemed to have notice of alleged harassment sufficient to obligate it to take remedial measures only if Coates had made "reasonably sufficient use" of Sundor's sexual harassment policy, which encouraged employees to immediately report any perceived harassment to their manager or any "other manager with whom they feel comfortable."  The court stated that Coates's initial complaint was reasonable and that Sundor reasonably responded to it; however, the court held that the plaintiff's various failed attempts to complain subsequently were insufficient to put the employer on notice of the alleged harassment until the plaintiff's second, explicit complaint.  The court then held that after the plaintiff's second explicit complaint, Sundor's immediate suspension of the alleged harasser constituted "prompt and effective" remedial action.  Therefore, Sundor was not liable for the alleged harassment.

The Coates opinion is important to employers for two main reasons.  First, the Eleventh Circuit withdrew and vacated its earlier opinion in this case which had applied the vicarious liability affirmative defense established by the United States Supreme Court in two landmark sexual harassment decisions issued last summer.  In those cases, the Supreme Court considered when an employer may be liable for a supervisor's hostile work environment harassment.  Although the Supreme Court cases dealt with harassment by a supervisor, in the initial Coates opinion, the Eleventh Circuit applied the same standard to this case involving a co-worker harassment situation.  The new Coates opinion does not apply the supervisor standard.  Second, regardless of the standard applied, both Coates  opinions reinforce the importance of creating an understandable, easily accessible and effective sexual harassment policy and promptly responding to employee complaints to avoiding liability for workplace sexual harassment.