In a Second Circuit case, Karen Duch sued the State of New York for sexual harassment. Duch, a court officer at the Manhattan Midtown Community Court, spoke with a manager who also served as an EEO liaison about ongoing harassment.
Duch told the manager, “I’m telling you as a friend;” when the manager asked if she wanted the harassment reported, Duch replied, “Absolutely not.” Because of that request, and despite the manager’s EEO responsibilities, the manager did not report the harassment to anyone.
The court ruled against Duch and reached several conclusions employers should consider when evaluating workplace harassment complaints.
Key court findings
- When harassment comes from a co-worker rather than a supervisor, an employer is liable only if it fails to provide a reasonable avenue for complaint or to take appropriate remedial action about a problem it knows of.
- In this case, the court found Duch had reasonable avenues of complaint despite the EEO liaison being poorly trained and failing to report her complaints; Duch acknowledged she could seek assistance from at least five different sources besides the manager.
- The question of whether a manager’s failure to act can be imputed to the employer depends on whether the official is high enough in management to act as the company’s proxy, has a duty to remedy the problem, or has a duty to inform the company of the harassment.
- The court held the manager did not breach her duty here because she honored the employee’s request for confidentiality and the conduct had not reached the point where a manager must act despite such a request.
- However, the court found that knowledge by a higher-level executive could be imputed to the employer, and purposeful ignorance by a supervisor is not a shield against liability; a jury could find that a delayed response (a formal investigation that began three months later) was unreasonable.
Lesson learned
Be very clear about what you want managers to do when they suspect or learn of wrongful conduct. Clear policies and training reduce ambiguity about reporting obligations and confidentiality.
Manager guidance
- What should they do if they know about misconduct but nobody complains?
- What should they do if somebody complains to them but asks them not to say anything?
- What should they do when things get so bad that they should speak up despite the employee’s request for confidentiality?
- How should they approach someone if they suspect harassing conduct? For example: “Is Bob harassing you? Should I speak to the EEO about this? If you want me to keep it confidential I’m going to write this down to protect the company and myself. If you feel you need help, I’ll always report it to a proper superior or you can go directly to that person without involving me if you want to.”
Employers may also want to review available workplace insurance options such as Sexual Harassment Insurance (Workplace) to understand how coverage can support investigations and liability management.
For organizations that expect to need defense or investigation support, consider reviewing Sexual Harassment Defense Coverage to see what defenses and costs it may address.
Entities with court staff should also evaluate specialized policies such as Professional Liability Insurance for Court Clerks to determine whether additional protections are appropriate.
The full court opinion is publicly available online for those who want to read the decision in detail.
If you want personalized assistance in reviewing coverage options, you can talk to an agent about appropriate policies and limits.
Frequently Asked Questions
When does an employer become liable for co-worker harassment?
An employer can be liable if it knew or should have known about the harassment and failed to provide a reasonable avenue for complaint or take appropriate remedial action.
Can a manager’s promise of confidentiality absolve the employer from liability?
Not always; honoring confidentiality can be appropriate, but if conduct becomes severe or a manager has a duty to act, silence may not shield the employer from responsibility.
What steps should employers take after receiving a harassment complaint?
Employers should follow clear reporting procedures, promptly investigate allegations, document actions taken, and take remedial measures as needed while balancing confidentiality and legal obligations.
Should organizations consider insurance for harassment-related claims?
Yes; specialized policies can help cover investigation and defense costs and should be reviewed with an insurance professional to match organizational risks.