Be Careful Who You Let Lurk Around The Workplace

Fourth Circuit Allows Hostile Work Environment Claim to Proceed Against Employer Based on Third-Party's Actions

In a 2-1 decision, the US Court of Appeals for the Fourth Circuit held that a negligence standard applies to third-party harassment claims, consistent with other federal appeal courts. Freeman v. Dal-Tile Corp., 13-1481, 2014 WL 1678422 (4th Cir. Apr. 29, 2014). The US Supreme Court has yet to address the issue.

Background Facts

The harassment claims at issue were based on the behavior of Timothy Koester, an independent sales representative for VoStone, a distributor to Dal-Tile Corporation. Lori Freeman usually interacted with Koester more than once a day while he was conducting business with Dal-Tile on behalf of VoStone.

The Complaint and record testimony in the case contained numerous allegations of harassment and poor behavior by Koester. Some highlights include that Koester used the word "b**** " in the office, such as "You should have seen these hot b****es I met last night." Jodi Scott, one of Freeman's co-workers, testified that Koester used the word "b**** " "[u]sually about every time that he came in." Sara Wrenn, the assistant manager, even referred to Koester as a "pig." Koester himself also admitted he made sexual comments in the office. Freeman and other co-workers also testified generally about Koester's inappropriate racial remarks. For instance, Koester used racial "slang" such as "Yo, b**** " and "How's my b****es?" when talking to the female employees and in 2008, following the election of Barack Obama, Koester said to Freeman, "[Y]ou guys won." He even allegedly used the "n" word. Koester himself admitted that he made comments that were "[m]aybe racially inappropriate."

Following the most recent "black b****" incident in July 2009, Freeman reported Koester's remarks to Cathy Diksa in human resources after Wrenn ignored her complaint. Diksa initially promised Koester would be permanently banned from the facility. However, the company lifted the ban and instead prohibited Koester from communicating with Freeman. He was allowed on the premises but had to coordinate all on-site meetings through Wrenn.

Freeman alleged that she was so upset about the prospect of being forced to interact with Koester that she took a medical leave of absence beginning September 2, 2009. During this time, she received treatment for depression and anxiety. Freeman returned to work around November 19, 2009. Wrenn informed Freeman that...