Our Elected Officials Shouldn’t Turn Their Backs.. It Just Might Cost Tax Payers More.

Elected Officials Act Upon Employee Complaints of Sexual Harassment

By
July 9, 2009
What do you do when employees come to you as a member of the city council or village board and complain that their supervisor is sexually harassing them? Don’t just walk away from the employee and do nothing as the elected official did in Papay v. Town of New Canaan, Case No. 3:03-CV-2083 (D. Conn. 2006). Keely Papay sued her former employer, the Town of New Canaan, under Title VII of the Civil Rights Act of 1964, alleging that a supervisor’s sexual harassment created a hostile environment, and that the municipality’s failure to fire the harasser forced her to resign. Papay was an administrative assistant in the Planning and Zoning Department. Papay claimed she was physically and verbally harassed regularly over a period of three years, including five to ten instances of conduct amounting to sexual assault. Papay complained to an elected member of the Town’s council, but he “walked away.” Papay’s attorney then sent a letter to the municipality detailing the verbal and physical harassment and asking that the municipality fire the harasser. The municipality investigated Papay’s claims and found they were inconclusive and decided not to fire the harasser. However, to “remedy the tension” between Papay and the harasser, the elected officials moved the harasser 60 to 100 feet down the hall from Papay’s office. Papay resigned after the municipality decided not to fire the harasser. The federal judge in rejecting the municipality’s request for summary judgment as a matter of law found that moving the harasser’s office was insufficient to shield the municipality from potential liability and offered Papay “no significant relief” as the harasser could still enter her office to retrieve files. Intentional sexual harassment by persons acting under color of state law violates the Equal Protection Clause of the Fourteenth Amendment and supports a § 1983 action. In a § 1983 action, a supervisor incurs liability for a violation of a federally protected right when the supervisor is personally involved in the violation or when the supervisor’s corrective inaction constitutes deliberate indifference toward the violation. “‘The supervisor must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he or she] might see.’” Ottman v. City of Independence, 341 F.3d 751, 761 (8th Cir. 2003) (emphasis added). A municipality is vicariously liable for hostile sexual harassment by its supervisors, unless it demonstrates entitlement to the Ellerth-Faragher affirmative defense. The Ellerth-Faragher defense consists of two necessary elements: (1) that the municipality exercise reasonable care to prevent and correct promptly any sexually harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the municipality or to avoid harm otherwise. An elected official who “walks away” or turns a “blind eye” to an employee who is complaining of sexual harassment will likely jeopardize the municipality’s reliance on the Ellerth-Faragher defense to such claims. The elected official, who is notified of an employee being sexually harassed, must report that information to those in a position to take corrective action, if he or she is not in a position to correct the offending behavior. Editor’s Note: This article is not intended to provide legal advice to our readers. Rather, this article is intended to alert our readers to new and developing issues and to provide some common sense answers to complex legal questions. Readers are urged to consult their own legal counsel or the author of this article if the reader wishes to obtain a specific legal opinion regarding how these legal standards may apply to their particular circumstances. The author of this article, Jerry L. Pigsley, can be contacted at 402/434-3000, or at Harding & Shultz, P.C., L.L.O., P.O. Box 82028, Lincoln, NE 68501-2028, or jpigsley@hslegalfirm.com.

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2 thoughts on “Our Elected Officials Shouldn’t Turn Their Backs.. It Just Might Cost Tax Payers More.”

  1. Generally speaking:

    Allocations of sexual misconducts by public figures will stay alive without regards to passing time. The elected officials may be hold responsible if they found guilty of withholding or suppressing evidences to cover-up a sexual misconducts by any public officials holding an office in their municipalities.

    Allegations of sexual misconducts claims officially filed and received by city officials must be investigated at the municipality level or reported by the city officials to higher authorities (County/State/federal) for investigation. In both situation, a report will be completed and publicly released.

    Covering-up such matters by municipal officials or delaying the investigations of such matters or suppressing such matters or refusing to acknowledge such claims or closing the eyes and ears on such claims by municipal officials may constitute violations of various criminals or civil laws or regulations or codes of ordinances or charters. Those violations may be at all levels (local, state, federal)

    Allegations of such matters should be acted on asap upon received or acknowledged or made public or circulated in the media. In situations when acting is not possible for one reason or so, the delay should be documented and field in the municipal records and the matters should be reopened and investigated as soon as the delaying factors no more exist.

    Transparency! Transparency! Transparency

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