“Second-Hand” Harassment: Can an Employer Get Burned?
You’ve probably heard about the dangers of second-hand smoke. But what about the employment-related danger of “second-hand” harassment? Consider this scenario: Mr. Jerk, a bank manager in the credit department, repeatedly harasses his administrative assistant, Gina. He invites Gina to have drinks with him, repeatedly touches her shoulders, and brushes up against her. Gina never complains to anyone in bank management about Jerk’s conduct. A few months later, Rhonda, a file clerk working in the same department, files a sexual harassment lawsuit and maintains that several men in the department told inappropriate sex jokes in front of her and downloaded pornography from the Internet. To support her lawsuit, Rhonda relies on Gina’s allegations concerning Jerk’s comments and touching. Rhonda, however, never personally observed or experienced Jerk’s conduct. Gina told Rhonda about her experience with Jerk during an after work happy hour. Given these facts, can an employer be liable for Jerk’s harassment based on conduct Rhonda did not personally witness or observe? Until recently, the answer to this question was unclear. The Fifth Circuit Court Appeals, which covers Texas, Louisiana, and Mississippi, recently determined that “second-hand” harassment, like the harassment experience Gina conveyed to Rhonda, may not support a plaintiff’s hostile environment claim.