In a recently decided employment law case, Cooper v. Smithfield Packing Company, Inc., the Fourth Circuit found that summary judgment in favor of an employer was proper because another employee’s actions couldn’t be imputed to the employer. Cooper v. Smithfield Packing Co., Inc., No. 17-1002, 2018 WL 1151787, at *4 (4th Cir. Mar. 5, 2018). In this case, the plaintiff, Lisa Cooper (“Cooper”), was an employee of the defendant, The Smithfield Packing Company (“Smithfield”), and brought suit against Smithfield under Title VII of the Civil Rights Act and state tort law based on the actions of another employee of Smithfield.

Cooper alleged that a superintendent of Smithfield, Tommy Lowery (“Lowery”) sexually harassed her on a regular basis for a period of four years. According to Cooper’s claims, Lowery repeatedly asked her to sleep with him, threatened her when she refused to sleep with him, physically brushed up against her, demeaned her relationship with her husband, and required her to work in close proximity with him for no reason. Eventually, Cooper reported Lowery’s behavior to Smithfield’s HR department, provided a written statement, and then resigned the following day while Smithfield was investigating her claims. Cooper’s claims against Smithfield alleged retaliation, wrongful termination, gender discrimination, hostile work environment, negligent infliction of emotional distress, intentional infliction of emotional distress, and negligent supervision and retention. The District Court dismissed all of Cooper’s claims, except the hostile work environment claim.

Supervisor Liability vs. Coworker Liability

The crux of Cooper’s hostile work environment claim and the finding most instructive to employers deals with supervisor liability. In Cooper, the court discussed the ways an employee’s actions can be imputed to the employer. An employer may be liable for an employee’s harassing behavior: (1) if the plaintiff demonstrates that the harasser is the plaintiff’s supervisor or (2) if the employer “knew or should have known about the harassment and failed to take effective action to stop it.”

If the plaintiff is able to show that the harasser is the plaintiff’s supervisor, “the employer is strictly liable for harassment culminating in a tangible employment action.” If an employer can establish “that it exercised reasonable care to prevent and correct the harassing behavior, and that the plaintiff unreasonably failed to take advantage of the employer’s preventive or corrective measures” the employer has an affirmative defense. Under Title VII, an employee is a “supervisor” if he is “empowered by the employer to take tangible employment actions against them.”

However, if the harasser is only a coworker, rather than a supervisor, then the employer is only liable if the employee can show the employer “knew or should have known about the harassment and failed to take effective action to stop it.” Employer negligence can be shown by establishing that the employer did not provide “reasonable procedures for victims of harassment to report complaints.” If an employer has a written anti-harassment policy in place, there is “compelling proof” that the employer exercised the necessary reasonable care to avoid liability, unless the policy was “adopted or administered in bad faith or . . . it was otherwise defective or dysfunctional.”

In Cooper, the court found that Lowry was not involved in the hiring or firing of Cooper and that he had no authority over those decisions, and thus, he was not Cooper’s supervisor. While Lowry provided informal evaluations of Cooper to the HR department and had some oversight of Cooper’s vacation days, this was insufficient to establish supervisory status. Viewing the matter in the light of Lowry and Cooper as coworkers, the court found that Smithfield was not negligent. Smithfield had a written anti-harassment policy and a written code of conduct prohibiting harassment, as well as annual training for employees on anti-harassment standards and a hotline for employees to report concerns anonymously. Additionally, Smithfield only learned of the harassment days before Cooper resigned. Once notified of the harassment, Smithfield immediately began investigating the claims and offered to change Cooper’s work assignment during the investigation.

What does Cooper mean for employers?

Cooper is illustrative of some best practices that could be beneficial for employers to implement into their own businesses to avoid liability for similar situations down the road. As mentioned in Cooper, if an employer waits until a problematic situation arises to implement these measures, it may be too late and the employer may find itself liable for an employee’s wrongdoing. It’s important to take the time now to determine what procedures should be put in place and make sure those procedures are sufficient to avoid a finding of employer negligence. So what should employers do? Below are a few suggestions for steps employers should consider taking:

• Codify an anti-harassment policy – Look over the organization’s policies and make sure an anti-harassment policy is included. The policy should also include a requirement that any violations of the harassment policy should be reported immediately. If there isn’t an anti-harassment policy in place, consider updating the policies as soon as possible and adding an anti-harassment policy. If a policy update is required, consider notifying employees that the organization’s policies have been updated to ensure that all employees are on notice of the existence of such policies.
• Create set procedures for reporting complaints of harassment – In addition to a general prohibition of harassment, employers should have a set procedure in place detailing how employees are able to report complaints of harassment. It is important that departments or specific individuals tasked with receiving or handling these complaints are aware of the proper steps to take when complaints are made.
• Annual training – If your organization has annual training or annual meetings, consider including a discussion of the organization’s anti-harassment policy and what type of behavior constitutes harassment. In the absence of annual training, annual reminders to employees detailing the organization’s standards and reporting procedure should be considered.
• Investigate immediately – One of the most important things to remember is that if any complaints are made, they need to be addressed immediately through investigations and any necessary corrective actions.

In sum, the two critical steps that employers can take to minimize the likelihood of employee conduct being imputed to the employer are to (1) develop, distribute, and actively enforce an effective anti-harassment policy that provides clear guidance to employees on how to report complaints; and (2) exercise reasonable care in addressing all complaints through investigations and corrective actions.  It is important to emphasize that having an anti-harassment policy but failing to train supervisors and employees will make it difficult to later assert the policy as a defense against a harassment claim.

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Attorneys at General Counsel PC are specialized in labor and employment law and have the knowledge necessary to help you understand what these findings mean for your business. Our attorneys have experience working with business owners across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William. Whether you want to make sure current procedures are sufficient or you are looking for assistance creating these policies and procedures from scratch, General Counsel PC has the expertise you need. For more information about how you can ensure your business is protected, call General Counsel PC at 703-556-0411 today.