Human Resources News & Insights

‘She never reported harassment’: A 3-factor test determined who’s liable

Imagine being sued by an employee who claims she was sexually harassed, but she never bothered to report it to anyone. Your company won’t be held liable, right? Well, you’ve got to pass a three-pronged test first, according to the 4th Circuit Court of Appeals. 

The court used this three-factor test to throw out a sexual harassment lawsuit Kimberly McKinnish filed against her employer, the United States Postal Service (USPS):

  • Factor 1: Did the supervisor’s harassment result in a tangible employment action? If so, the employer is strictly liable.

If no tangible employment action was taken, the employer may escape liability by establishing … :

  • Factor 2: … the employer exercised reasonable care to prevent and correct any harassing behavior, and
  • Factor 3: … the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities the employer provided.

Husband filed the report

McKinnish was a transitional employee in the USPS’ Asheville, NC, office. Part of her duties included delivering mail on various routes when a permanent employee missed work.

McKinnish worked with David Duncan, whom she claimed was her supervisor, although his supervisory status was disputed in court.

For about 10 months, Duncan and McKinnish exchanged numerous text messages and videos. They were often sexually explicit. In some of the messages, Duncan made requests of McKinnish.

McKinnish’s suit claimed that she received favorable treatment when she honored Duncan’s requests. She also claimed she received bad mail routes when she declined his requests. Still, overall, she claimed her hours were fairly constant and she made more money that year than ever before.

McKinnish never told anyone at the USPS about the messages. Instead, it was her husband, who after finding seeing the texts, reported them to the USPS.

The USPS then launched an investigation, which ended in Duncan’s termination.

Not long after, McKinnish filed a sexual harassment lawsuit against the USPS.

Why the employer prevailed

After making it to appeal, the 4th Circuit Court launched into the test:

  • Factor 1 — employment action: Based on McKinnish’s own statements that her hours remained constant and her pay had actually increased, the court said neither her employer nor her “supervisor” took a tangible employment action against her. So the USPS passed this part of the test.
  • Factor 2 — prevention/correction: The court found that the USPS had a policy prohibiting harassment and also directed workers to report harassing behavior. Plus, when it investigated the complaint made by McKinnish’s husband, Duncan was quickly dealt with. So the USPS passed this factor as well.
  • Factor 3 — plaintiff’s actions: McKinnish didn’t report the behavior to anyone. And although she claimed she didn’t speak up out of fear she’d face retaliation, the court said those fears didn’t alleviate her duty to report the behavior. So the USPS passed again.

As a result, the 4th Circuit Court of Appeals ruled McKinnish failed to provide enough evidence that the USPS was liable for harassment, and it dismissed her case on summary judgment.

Cite: McKinnish v. Brennan, Postmaster General, USPS

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