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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Court appears to misapply Ellerth / Faragher.

Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405 (5th Cir. July 5, 2002) - From March to July of 1994, Alisha Wyatt was sexually harassed by her supervisor, John Thompson. Wyatt reported this harassment to Donald Gorum, Thompson's supervisor. Unfortunately, Gorum also began harassing Wyatt. From July to November 12, 1994, Wyatt did not complain about their harassment -- even though company policy provided other persons to whom complaints could be made. On November 12, 1994, Thompson pulled down Wyatt's pants in the presence of other employees. Wyatt immediately reported the incident to Gorum. Gorum filled out an incident report, but refused to note that Wyatt's pants had been pulled down. Two days later, Wyatt complained to Gorum's immediate supervisor. One day later, both Thompson and Gorum were fired. After their termination, co-workers harassed Wyatt for getting Thompson and Gorum fired. The company tried to stop this harassment. On appeal, the issue is whether Hunt Plywood made out the Ellerth / Faragher affirmative defense. The Court divides the harassment into three separate time frames. The Court finds that Hunt Plywood did not establish the affirmative defense with respect to the initial period of harassment by Thompson because Wyatt reported the harassment to Gorum and he failed to take corrective action. With respect to the period of joint harassment by Thompson and Gorum, Hunt Plywood established the affirmative defense because Wyatt failed to report this harassment. With respect to the co-worker harassment that occurred after the terminations, it was not sexual and was not performed by supervisors. Editor's Note: When Thompson pulled down Wyatt's pants, she immediately reported the incident. The Fifth Circuit focuses on whether the employer took corrective action -- but this was not co-worker harassment. The question should be whether this incident was severe enough to constitute sexual harassment. If so, then Hunt Plywood cannot establish the second prong of the Ellerth / Faragher test because Wyatt immediately reported the incident. Click here to see actual case.