The Flawed Employer Plea For Immunity: We Took Some Action After Learning Of The Sexual Harassment

Under employment discrimination law, employers are obligated to take remedial action when they know or should know of sexual harassment in the workplace. Having represented sexual harassment victims for decades, our sexual harassment lawyers in Citrus County, Florida have learned that employers routinely maintain they are immune from liability for hostile work environment sexual harassment so long as they took some remedial action after learning sexual harassment had occurred. In other words, employers contend that whether the remedial action taken was actually effective in stopping the sexual harassment or preventing recurrence of the sexual harassment is irrelevant because they are only obligated to take some remedial action after becoming aware of the sexual harassment. In this article, our sexual harassment lawyers in Citrus County, Florida explain how the recent decision in Riggins v. Town of Berlin, 2024 WL 2972896 (2d Cir. June 13, 2024) shows that employers are not immunized from liability for hostile work environment sexual harassment simply because they took some remedial action after the knew or should have known of sexual harassment in the workplace.

Employer’s Remedial Obligation

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes sexual harassment an unlawful employment practice. As court in Curry v. District of Columbia, 195 F.3d 654 (D.C. Cir. 1999) pointed out, “Title VII does not permit employers to stand idly by once they learn that sexual harassment has occurred.” Instead, once an employer knows or should know of sexual harassment in the workplace, Title VII imposes a remedial obligation on the employer. The employer’s remedial obligation, as the observed by the court in Fuller v. City of Oakland, Cal., 47 F.3d 1522 (9th Cir. 1995), “will not be discharged until action—prompt, effective action—has been taken.” The reasonableness of an employer’s remedial action, as the court in Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) explained, “depends on its ability to: (1) stop harassment by the person who engaged in harassment, and (2) persuade potential harassers to refrain from unlawful conduct.” The Nichols further explained that “[w]hen an employer undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment.” Thus, if an employer is aware of sexual harassment, and takes no remedial action or the remedial action taken does not prevent recurrence of the sexual harassment, the employer is liable under Title VII for creating and maintain a sexually hostile work environment.

Sexual Harassment Lawsuit

In Riggins, a woman named Riggins brought a sexual harassment claim against her former employer, the town of Berlin, Connecticut (the “Town”), pursuant to Title VII. Riggins was employed by the Town as Town Planner and Director of Development Services. Riggins alleges that she was sexually harassed by a local building contractor, TC, in violation of Title VII.

In May 2013, TC sent an anonymous letter to the Town Manager, Mayor, and media outlets complaining that Riggins should have been removed from her position with the Town because, he alleged, Riggins was “involved in a sex scandal” with a subordinate. The Town concluded that TC was the author, and consulted a detective in its police department as to whether the sending of the letter constituted a prosecutable crime. The detective determined that it did not violate any criminal statutes. The Town then told Riggins that she could have a police officer present when meeting with TC in the future. In September 2013, TC sent an email to the Town’s Mayor repeating his complaint that Riggins had not been terminated for engaging in sexual activity with a subordinate while on Town property.

In January 2017, TC sent an email to a Town building official, Van Linter, who was one of Riggins’ subordinates, copying Riggins. In that email, TC complained that a request he made to the Town had been wrongly denied by Van Linter on the basis that TC owned delinquent taxes. TC’s email stated: “I understand you’re getting the [ ] Driska treatment,” referring to the allegations in his 2013 communications, and implying that Riggins had engaged in inappropriate sexual activity with Van Linter to persuade him to deny TC’s request. In response to that email, the Town’s attorney contacted the Town’s police department, and a detective was assigned to investigate the matter. The Town’s attorney also forwarded the email to TC’s then-attorney, “advising him that TC needed to stop with the inappropriate communications.”

“There Wasn’t Anything [Employer] Could Do”

In February 2017, TC sent an email to Town Council members complaining that Town officials were “creating hurdles rather than working with us.” The email threatened “to go to the press” and to “make a complete spectacle of our town” by telling the press “what [Driska] told me, how the town planner [Riggins] told him if he busted [me] she would” engage in sexual conduct with him. Again, the communication used lewd and harassing language. The Town’s attorney thereafter spoke with TC’s new attorney and “advised him that his client was inappropriate in his communications with Town employees, and that it needed to stop.”

On September 9, 2017, TC sent an email to the Town’s assistant building official which again insinuated, in lewd and offensive language, that Riggins was engaging in sexual acts with Van Linter, her subordinate. The email was forwarded to Riggins. TC’s “written communications throughout were replete with aggressive, lewd, demeaning, and sexually discriminatory language.”

The Town Manager and the Town’s attorney discussed the situation. The Town’s attorney advised the Town Manager “there wasn’t anything [the Town] could do.” In an email, the Town’s attorney recommended that the town “just ignore the guy unless he starts threatening.” On September 11, 2017, the Town Manager met with Riggins and informed her that there was nothing the Town could do about TC’s September 9, 2017 email. On September 15, 2017, Riggins submitted her resignation. After Riggins submitted her resignation, the Town Manager contacted the Town’s employment attorney for advice. Shortly thereafter, the Town decided, for the first time, to conduct a sexual harassment investigation.

Inadequate Remedial Action

The trial court dismissed Riggins’ sexual harassment claim. The trial court found that there was no basis for holding the Town liable for the alleged sexual harassment because “the Town took appropriate remedial action to protect [Riggins] against further harassment.” According to the trial court, “a jury could not reasonably find that the Town failed to take concrete action that could have prevented [TC’s] harassment.” On appeal, the U.S. Second Circuit Court of Appeals reversed the trial court’s decision and reinstated Riggins’ sexual harassment claim.

The Second Circuit specifically rejected the trial court’s finding that “a jury could not reasonably find that the Town failed to take concrete action that could have prevented [TC’s] harassment.” Unlike the reversed trial court, the court of appeals found that “although there is no dispute that the Town took some action in response to [TC’s] conduct,” a “reasonable jury could conclude that those actions were not sufficient in light of the circumstances.” In other words, according to the appellate court, taking some remedial action was not enough to immunize the Town from liability. Instead, the Town was obligated to take prompt and effective remedial action.

In support of its conclusion that the Town’s remedial action was not adequate, the Second Circuit pointed out, “although the Town brought Riggins’ complaints to the police, those efforts focused on whether [TC] could be criminally prosecuted, rather than on preventing further sexual harassment of Riggins.” The court of appeals also pointed out that “during the period of Riggins’ employment, the Town failed to investigate whether there were steps, other than criminal prosecution, the Town could reasonably take that might dissuade [TC] from further sexually harassing communications.” The appellate court further noted that the Town “failed to investigate whether [TC’s] communications violated to the Town’s obligations under Title VII . . . until after Riggins resigned.” “This failure alone,” the Second Circuit determined, “creates a triable issue of fact as to whether the Town’s response was appropriate.”

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Cirtus County, Florida have fought for the rights of sexual harassment victims for more than twenty years. If you have been sexually harassed at work or have questions about your rights as a sexual harassment victim, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.