II. Hostile Work Environment
Plaintiff may, however, go to trial on a hostile work environment theory.
A claim of a sexually hostile work environment is actionable under
Title VII if the workplace is both objectively and subjectively
offensive. In other words, Plaintiff must demonstrate not only that she
found the environment to be offensive, but that a reasonable person also
would have found the environment to be hostile or abusive. Harris v.
Forklift Sys. Inc., 510 U.S. 17, 21-22 (1993). Title VII is violated when
the workplace ambience is sufficiently severe or pervasive to create a
discriminatorily hostile or abusive work environment. Harris, 510 U.S. at
21-22 (applying Meritor Savings Vank FSB v. Vinson, 477 U.S. 57 (1986)).
The alleged discriminatory conduct must be viewed in light of the
totality of the circumstances, including the frequency of the
discriminatory actions, its severity, whether the conduct was physically
threatening or humiliating, or merely an offensive utterance, and whether
it unreasonably interfered with the employee's work performance.
Faragher, 524 U.S. 775, 787-88 (1998).
For the purposes of this motion, Defendant does not contest that Brown
created a hostile work environment. The only question is whether
Plaintiff has set forth facts to raise an issue regarding Defendant's
liability for this hostile environment.
An employer may escape liability for hostile work environment
harassment if the employer demonstrates that (1) it exercised reasonable
care to prevent and correct promptly any sexually harassing behavior, and
(2) the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer. Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998); Leopold v. Baccarat. Inc., 239 F.3d 243,
245 (2d Cir. 2001); Caridad v. Mefto-North Commuter R.R. Co. v. Norris,
191 F.3d 283, 293-29 (2d Cir. 1999).
Defendant argues that they exercised reasonable care to prevent and
correct any alleged inappropriate conduct and that Hill unreasonably
failed to use Defendant's sexual harassment complaint procedure.
Plaintiff of course, disagrees.
An employer may be held liable under Title VII for a hostile work
environment if the employer either provided no reasonable avenue for
complaint or knew of the harassment but did nothing about it. Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986); Tomka v. Seiler Corp.,
66 F.3d 1295 (2d Cir. 1995). In this case, Plaintiff has raised an issue
over whether Defendant took "prompt remedial action reasonably calculated
to resolve the problem was taken." Tunis v. Corning Glass Works,
747 F. Supp. 951, 959 (S.D.N.Y.), aff'd, 930 F.2d 910 (2d Cir. 1991);
Hylton v. Norrell Health Care of New York, 53 F. Supp.2d 613, 618-19
(S.D.N.Y. 1999) (granting summary judgment on plaintiff's hostile work
environment claim where the employer's response was prompt, reasonable
and effective); see also Brown v. Perry, 184 F.3d 388, 397 (4th Cir.
1999) (granting summary judgment where employer's response was prompt,
reasonable and effective, and stating that "[t]he law requires
reasonableness, not perfection").
Defendant is correct that if the employer conducts an investigation
into the plaintiff's complaints upon learning of the problem, and
undertakes remedial action, those actions may illustrate the employer's
reasonableness in correcting any sexually harassing behavior. Caridad,
191 F.3d at 295. In Perry v. Ethan Allen,
Inc., 115 F.3d 143, 154 (2d
Cir. 1997), for example, the Second Circuit affirmed a dismissal of a
hostile work environment claim where the employer immediately
investigated a sexual harassment complaint, confronted the accused and
warned him that the employer would not tolerate further harassment. In
this case, Plaintiff has raised an issue over whether The Children's
Village's response was "prompt" — Plaintiff claims that The
Children's Village had notice of her complaint before she was fired. This
contrasts with Defendant's argument that it investigated her grievance
immediately upon learning of it.
Furthermore, Plaintiff has raised an issue of whether the investigation
that resulted was in fact reasonably calculated to resolve the problem.
Defendant did maintain a written sexual harassment policy. The existence
of a written sexual harassment policy is a consideration in determining
whether an employer exercised reasonable care. See Faragher, 524 U.S. at
807, Ellerth, 524 U.S. at 765; Caridad, 191 F.3d at 295; Brown, 184 F.3d
at 396. However, merely possessing a written sexual harassment policy is
insufficient to demonstrate reasonable care in preventing sexual
harassment; the written policy must also be reasonably promulgated.
Plaintiff has raised a question of fact over whether this policy was
regularly distributed to employees because she claims that she did not
see it until after she was fired.