H. K. v. Spine Surgery Center of Eugene

If another employee’s behavior creates a hostile working environment, an employee must prove that the employer “knew or should have known” of the harassment and failed to take prompt remedial action. Garcez v. Freightliner Corp., 188 Or App 397, 410 (2003). However, when the actor is the employer, “liability is direct, and there is no burden to separately prove the employer’s knowledge.” Schram v. Albertson’s, Inc., 146 Or App 415, (1997).

Employer, a medical clinic and its director, appealed a judgment in favor of Employee on her sexual harassment claim. At trial, Employee relied extensively on a Bureau of Labor and Industries (BOLI) file detailing another sexual harassment claim against the director. The trial court admitted the documents “for the limited purpose of establishing that [the clinic] had notice of prior allegations of sexual harassment by [the director].” On appeal, Employer assigned error to the trial court’s admission of the documents. If another employee’s behavior creates a hostile working environment, an employee must prove that the employer “knew or should have known” of the harassment and failed to take prompt remedial action. Garcez v. Freightliner Corp., 188 Or App 397, 410, 72 P3d 78 (2003). However, when the actor is the employer, “liability is direct, and there is no burden to separately prove the employer’s knowledge.” Schram v. Albertson’s, Inc., 146 Or App 415, 934 P2d 483 (1997), rev dismissed, 328 Or 266 (1999). The Court explained that the medical director was “the employer” for the purposes of ORS 659A.030 and, therefore, “the clinic’s liability, if any, would derive directly from [his] conduct." Thus, the Court held that the documents, even if they established notice of a hostile working environment, were irrelevant because Employee “did not have a burden to show notice or knowledge.” The Court found that the trial court erred in admitting the documents for that purpose. Reversed and remanded.