Elected Officials Act Upon Employee Complaints of Sexual Harassment
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 Â§ 1983 action. In a Â§ 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 firstname.lastname@example.org.