Everyday pestering and obnoxious behavior may be harassment, but the law does not provide a remedy for it. An employer’s policy might provide some remedy, but the law does not. On the other hand, if the pestering and obnoxious behavior has sexual overtones or if the target of the conduct is selected because of his or her sex, then Title VII of the Civil Rights Act of 1964 may apply. In order to prevail on a claim of sexual harassment by a co-worker, the plaintiff must prove the employer knew or should have known of the improper conduct and failed to promptly end it. These distinctions were important in a recent case in the Northeast.
Estrella Medina-Rivera worked for a government contractor, so she worked among government employees. She complained to her supervisor that one of the government employees was calling her on the phone and bothering her. She did not give the identity of the co-worker or describe the content of the calls in any way. Later, the co-worker allegedly sexually assaulted Medina-Rivera. She reported the assault to her employer, along with complaints of past sexually suggestive conduct. The Company investigated immediately. The co-worker, Ramon Ortiz, was transferred to a site in another city.
Medina-Rivera subsequently sued, but she based her complaint on how the company handled her initial complaint of bothersome phone calls. The case was dismissed and, as the federal court of appeals explained, Medina-Rivera created no duty for the company to act because she did not put it on notice that the bothersome phone calls might constitute sexual harassment. Although the employer escaped liability in this case, it might have avoided the lawsuit altogether if Medina-Rivera understood the difference between harassment and sexual harassment. So, the moral of the story is to ensure thqt anti-harassment training clearly explains legal protection arises from harassment that is based on a protected characteristic but not from everyday obnoxious, pestering behavior.