Clinic Students Help Win Reversal in Harassment Case

May 8, 2014 —

When Visiting Professor Brian Wolfman, co-director of the Institute for Public Representation, was approached about a federal district court decision dismissing the lawsuit of a North Carolina woman against her employer claiming a hostile work environment, he thought the court’s decision meticulous — and also wrong.

It was just the kind of appeal he wanted his clinic students to work on. But the opening brief was due on October 4, and the students didn’t start the clinic until September 2. “These students had never written a complex brief … this was a large record, hundreds upon hundreds of pages," Wolfman said. "They not only had to master the record, but do all the research and write the brief. And we filed it on October 4.” 

With the help of Peter Klym (L’14), Cain Norris (L’14) and Garrett Thomas (L’14), Wolfman and IPR Fellow Anne King (LL.M.’17) submitted the brief for Lori Freeman against her employer the Dal-Tile Corporation in the 4th U.S. Circuit Court of Appeals last fall. King argued the case in the 4th Circuit this spring with the help of Amanda Krause (L’14). 

On April 29 (owing in large part to the students’ and King’s hard work) the 4th Circuit reversed the district court’s grant of summary judgment on the key claims, meaning that Freeman’s suit can now go before a jury.

Among other things, the lower court had concluded that Freeman had not presented sufficient evidence to create a genuine factual dispute on the harassment claim and that even if she had, she could not establish that her employer should be held liable for the behavior of an independent sales representative.

But the 4th Circuit held that a jury could reasonably conclude that Freeman was subjected to a racial and sexual hostile work environment and that the harassment could be ascribed to Dal-Tile — adopting, for the first time, a negligence standard for analyzing an employer’s liability for third-party harassment under Title VII of the Civil Rights Act of 1964.

 “‘[A]n employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil, strategy,’” Judge Dennis Shedd wrote for the 4th Circuit. “Therefore, an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed ‘to take prompt remedial action reasonably calculated to end the harassment.’” 

King said that in preparation for oral argument the students even studied the Title VII decisions of various 4th Circuit judges, though they would not know until the day of the argument who would be on that particular three-judge panel. “The students all came down [to the court], and we talked about now that we know who the panelists are, what does that tell us? They were even doing some last minute thinking about what that meant.”

To read the 4th Circuit opinion, click here.

To read the IPR briefs, click here.

To read media coverage of the decision, click here and here.