Last Friday, the U.S. District Court for the District of Maryland reminded us all about the importance of preventing workplace harassment and especially harassment by supervisors and managers. In Rosinbum v. Azar, No. TDC-19-3119 (Nov. 6, 2020), the Court found that a former FDA research fellow sufficiently alleged claims of discrimination, retaliation, and hostile work environment under Title VII.
The bulk of the Court’s opinion recites Rosinbum’s allegations of sexually inappropriate comments and conduct by her supervisor, Moos. Among other things, Rosinbum alleged that Moos talked about his erectile dysfunction, frequently stated that women have children so they can do less work than men but collect the same paycheck, told Rosinbum he wanted to watch her have sex with her boyfriend, repeatedly touched Rosinbum inappropriately, and persistently tried to engage with her romantically. After Rosinbum refused to accompany Moos on a nonwork-related trip, Moos isolated her, ceased communication with her, withheld supervision and guidance related to her work, and threatened a negative performance evaluation. Rosinbum complained to another supervisor, and Moos was warned to keep his relationships with female employees “professional at all times.” Moos’s attitude towards Rosinbum, however, continued to worsen and interfere with Rosinbum’s career progress. Upon a subsequent complaint to a different supervisor, Rosinbum was accused of being disrespectful to her superiors, reassigned, and ultimately terminated.
Rosinbum filed suit against the Secretary of Health and Human Services (HHS). In part, HHS argued that it was not liable for Moos’s alleged harassment because the conduct was not attributable to HHS. The Court had no problem rejecting this argument, recognizing that the Supreme Court has already decided that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.”
If an employer proves that it promptly and reasonably tried to prevent and correct its supervisor’s harassment, and that the harassed employee unreasonably failed to take advantage of opportunities to prevent or correct the harassment, the employer may avoid liability for the supervisor’s harassment. Employers are always liable, however, if a supervisor’s harassment of an employee culminates in tangible employment action (such as a wage determination, failure to hire, or termination).
Maryland’s Fair Employment Practices Act (FEPA) provides similar protections. First, employers are explicitly prohibited from harassing employees, which includes independent contractors. The harassment provisions apply to Maryland employers of all sizes. And, employers are liable for harassment by individuals who undertake or recommend a tangible employment action or who direct, supervise, or evaluate the individual’s work activities.
The Rosinbum opinion underscores the importance of developing and implementing adequate anti-harassment policies and procedures in the workplace.