September 2013 Volume XII No. 12 Taking Care of Business
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7th Circuit Rules Same-Sex Sexual Harassment Plaintiff Gave Employer Sufficient Notice

Shelbie Byers
Shelbie Byers

In a recent decision handed down by the 7th Circuit Court of Appeals, the Court ruled that the Plaintiff had given sufficient notice of same-sex sexual harassment by reporting allegations to on-site managers, rather than following the employer’s policy for reporting such allegations, which required such allegations to be reported to HR or a corporate executive. Thus, the employer had sufficient notice of the co-worker harassment such that it could be held liable for negligence in failing to remedy the workplace harassment. Given this development in sexual harassment case precedent, employers should review their policies, including their anti-harassment policies, carefully to make sure proper reporting procedures are in place.


In Lambert v. Peri Formworks Systems, Inc., No. 12-2502 (7th Cir. July 24, 2013), Plaintiff, McKinley Lambert alleged that throughout his time as an employee at Peri Formworks Systems, Inc., he complained to his superiors about same-sex sexual harassment, racial harassment, as well as racial discrimination, but no action was taken. When Lambert began his employment with Peri Formworks Systems, Inc. the company did not have a sexual or racial harassment policy and/or reporting procedure in place; however, they eventually enacted one, listing an off-site HR representative and corporate executive as the contact persons for reporting purposes. Lambert alleged to have complained to his on-site managers, called “yard leads” regarding sexual harassment and sexually explicit acts of co-workers; however, he alleged that his complaints were met with laughter and/or explanation that such behavior was merely a joke. He alleged that he complained about racial harassment and the use of racial slurs to yard leads, but no action was taken. Lambert admittedly did not follow the reporting policy which required reporting such allegations to off-site HR representatives or corporate executives; rather he reported his complaints to on-site yard leads. These yard leads were in charge of reporting anything that was wrong in the yard to the yard manager. After Lambert was terminated under a zero tolerance policy for having come to work intoxicated, he brought a complaint alleging sexual harassment, racial harassment, racial discrimination and retaliatory discharge. The District Court granted summary judgment to the employer on all counts, ruling that the racial harassment was not severe and pervasive and the sexual harassment had not been reported to someone with authority to address it. The court also ruled for the employer regarding the race discrimination and retaliatory discharge allegations.

7th Circuit

As to the allegations regarding sexual harassment, an employer is only liable for co-worker sexual harassment, if the employer is negligent and had notice of the alleged conduct. “Notice that is sufficient to trigger employer liability must be given to either someone with authority to take corrective action or, at a minimum, someone who could ‘reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it.’” Lambert, No. 12-2502, *6 (7th Cir., July 24, 2013) (internal citations omitted). The 7th Circuit found that Lambert’s reports and complaints to the yard leads could be adequate notice because a reasonable jury could find that these employees had the responsibility to report the complaints to someone with authority to address the problems. The Court found the fact that Lambert failed to follow the employer’s reporting procedure was of no consequence in this case. The Court noted, “the fact that a company has designated one or two off-site corporate representatives to receive complaints of harassment does not license on-site managers to ignore complaints and evidence of co-worker harassment.” Id. at *9.

The racial harassment allegations required a showing that “because of race, he was subjected to severe or pervasive conduct that created a ‘subjectively and objectively offensive’ work environment.” Id. at *10. The District Court had granted summary judgment on Lambert’s allegations regarding use of the n-word and the terms “gorilla” and “donkeys” to refer to workers because the supervisors’ use of such words occurred over a span of several years and were not directed at Lambert in particular, and because Lambert had not presented evidence that such words (particularly the words gorilla and donkey) were used as racial slurs. The 7th Circuit noted that use of these offensive words occurred “on multiple occasions” and that the Plaintiff need not prove that these were racial slurs, but rather need only present enough evidence for a reasonable jury to conclude that such words were used as racial slurs. Therefore, the 7th Circuit reversed summary judgment as to the racial harassment claims.

The Court ruled that there was no race discrimination and no retaliatory discharge and upheld the District Court’s summary judgment as to the race discrimination and retaliation claims, finding that race and retaliation had nothing to do with the employer’s decision to test Lambert for intoxication and ultimately fire him when it was learned he was, in fact, intoxicated.

Best Practices

  • Update employment policies and manuals, including anti-harassment and discrimination policies, so that employees receiving complaints are required to pass the complaints along to the proper individuals for investigation.
  • Make sure the company’s harassment and/or discrimination reporting mechanism includes on-site individuals, if possible.
  • Workplace policies should adequately address workplace joking and/or harassment that could create a hostile work environment.
  • Have all employees review and sign that they have reviewed and understand the policies regarding anti-harassment and discrimination each time a change is made.
  • Properly train employees and supervisors regarding the company’s anti-discrimination and harassment policies. Engage outside counsel to provide such training.
  • Tier train employees who have employee reports.

At Hoeppner Wagner & Evans LLP, our employment and labor attorneys have deep knowledge and decades of experience counseling employers on how to comply with Title VII and related state legislation, including sexual harassment matters, handbook and policy updates to comply with the ever evolving employment laws, regulations and case precedent, as well as experience that is second to none in defending employment litigation matters brought against employers of all sizes. We also provide quality training programs for supervisors, managers and employees and can custom tailor our presentations to fit the needs of your company and/or organization.

If you have any questions about Title VII, employment handbooks and policies, in-house anti-harassment training, employment litigation or any other employment law matter, contact your Hoeppner Wagner & Evans LLP relationship attorney.

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