Congress directed the Equal Employment Opportunity Commission to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, and other federal laws prohibiting employment discrimination. This case raises important issues involving the nature of the proof required for a defendant in a Title VII harassment case to establish as a matter of law the affirmative defense for supervisory harassment, as set out by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Accordingly, pursuant to Federal Rule of Appellate Procedure 29, the Commission offers its views.

1. Did the employer establish as a matter of law that it exercised reasonable care to prevent and correct harassment when the plaintiff offered evidence that the company failed to train its staff on its harassment policy, that her supervisor failed to report her repeated complaints of harassment to management, and that the company disregarded substantial evidence corroborating her allegations?

2. Did the district court err in ruling that the plaintiff could not sue about the harassment that she timely brought to her employer’s attention because she had failed to complain to the company about harassment that had happened earlier?

3. Would the district court have erred in granting summary judgment to the defendant if it had applied a negligence theory of liability to the plaintiff’s post-transfer harassment?

Statement of the Case

A. Statement of the Facts

The International Paper Company (“IPC”) hired Tamika Ray in 2002 to work in its converting department. Joint Appendix (“JA”) 325. Her supervisor was Johnnie McDowell. JA 326. In early 2013 IPC transferred Ray to its adjacent shipping department. JA 255, 330, 333. Her supervisor in the shipping department was Benji Owens, JA 51, but Ray worked the second shift (3:00 p.m. to 11:00 p.m.), JA 46, and Owens worked the first shift, leaving at 5:00 p.m. JA 331. After Owens left, McDowell continued to function as Ray’s supervisor, according to Ray, JA 318, 331, but IPC testified that McDowell was no longer her supervisor, and that the shipping department on the second shift had no supervisor, but was coordinated by Trey Schaffer, the lead worker. JA 254-55.

IPC had an anti-harassment policy. JA 106. The “Management Responsibilities” section of the policy required “persons in management positions” to “bring to the attention of their supervisor or manager, their Human Resources Representative, the Director of Ethics and Business Practice, or the Legal Department any violation of the policy of which they become aware.” JA 106. That section does not state whether supervisors like Owens are considered “persons in management positions.” The “Complaint Procedures” section of the policy, however, implies strongly that supervisors are members of management. It instructs employees who experience or witness harassment to “report the conduct to management.” It then states that one way an employee can report harassment to management is by “report[ing] incidents directly to . . . your supervisor.” JA 106.

After initially being friendly toward Ray, McDowell started harassing her sexually sometime during 2003. JA 337, 342-43. He propositioned her for sex frequently, sometimes on a weekly basis. JA 343-44, 511. Ray consistently rejected these advances (they each were married to someone else, JA 338, 350), JA 344-45, and she frequently (a “gazillion” times) told him to stop asking her for sex. JA 345-46. McDowell also repeatedly urged her to come to his house after work. JA 350. While pointing to his or her crotch, he asked her to show him her “cha cha” or her “monkey,” which were slang terms for her genitalia. JA 361, 370-71. One time he grabbed her thigh. JA 363-64, 514. He told her he wished his office had curtains so he could bend her over his desk. JA 363, 514. Between twenty and thirty times, he offered her money (and one time a television set) for sex. JA 348-49, 464, 511. He threatened to have sex with her sister-in-law if she continued to refuse him, JA 354, and he assured Ray that he would get her pregnant. JA 355-56. This last statement caused Ray particular pain because, as McDowell knew, she was infertile. JA 356.

Sometime in 2013, Ray complained about McDowell’s harassment to Owens, her shipping supervisor; Derrick Smith, another supervisor; and Tracy Israel, a safety manager. JA 319 (¶ 19), 514. She told them that McDowell would not leave her alone and was “ragging her” because she would not have sex with him. JA 514. Owens and Smith asked her if she wanted them to say something about this, and Ray said no, because she was afraid that would make things worse. JA 514.

After that initial complaint, Ray frequently called Owens and said she needed to leave work early “because she was so upset because of the way McDowell was treating her.” JA 319 (¶ 19), 514. More than once, Ray told Owens that she believed McDowell was acting this way towards her because “I won’t give him some.” JA 514. IPC offered no evidence that Owens ever told any manager that McDowell was harassing Ray and causing her to leave the assembly line before her shift was up.

On Friday, September 19, 2014, at the end of a workweek in which McDowell’s harassment had caused her particular stress, Ray left work early. JA 318 (¶ 11), 514. She had arranged for the person who operated her machine on the night shift to come in early to cover for her, JA 137, but she did not obtain supervisor approval before leaving, as she should have done. JA 56-57, 257-58, 432. On Monday the 22nd, she met with Michael Toburen, the general manager for the complex, and Tammy Hyatt from human relations (“HR”). JA 257-58. Ray told them that McDowell was harassing her sexually and had been doing so since 2003. JA 60-61, 63-64, 81.

Hyatt and Toburen started investigating Ray’s allegations that same day. JA 258-59. They interviewed Ray, McDowell, and a number of Ray’s coworkers, whose names Ray had given them as potential witnesses. JA 258-59, 471. During these interviews, one coworker reported that McDowell often spent time near Ray’s machine (which was not in his department), and that Ray had complained to him (the coworker) the previous week that she was tired of McDowell coming to her and asking for sex. JA 499. Two coworkers stated that McDowell had told them that he wanted to have sex with Ray. JA 494-95. Ray, of course, had complained to Hyatt and Toburen that McDowell frequently told her he wanted to have sex with her, but Hyatt testified that she and Toburen did not view these statements by her coworkers as corroborating Ray’s complaint in any way. JA 497-98.

When Hyatt and Toburen interviewed McDowell, he denied Ray’s allegations and told them that he “‘never said anything sexual to or about Tamika.’” JA 261. IPC concluded that this latter statement was a lie. JA 498. In addition, Hyatt admitted at the Rule 30(b)(6) deposition that IPC did not investigate many of Ray’s specific allegations about the things that McDowell did to harass her. JA 488-93.

Notwithstanding these findings, IPC concluded that none of the witnesses’ statements corroborated Ray’s complaints. JA 87. Accordingly, Toburen decided not to discipline McDowell in any way other than to direct him to stop communicating directly with Ray. JA 87-88.

On November 17, 2014, Ray again complained to IPC about McDowell’s harassment of her. JA 319, 430. She charged that he was staring at her and obstructing her performance of her duties. Ray, who worked in the shipping department, alleged that McDowell, who supervised the converting department, would come stand near her and stare at her in an intimidating manner, even though, according to the company, she was no longer under his supervision. JA 319.

Ray also alleged that McDowell repeatedly interfered with her performance of her duties. IPC had six or seven machines in its converting department that cut and scored pieces of cardboard in a way that allowed IPC’s customers to assemble boxes fitting their specifications. JA 48, 316. The converting machines would create large piles of these potential boxes called “units.” JA 317. Conveyor belts then transported these units in a synchronized fashion to Ray’s bander machine so that they arrived at the bander one at a time with space between the adjacent units. JA 317, 367. When the electronic eye on the bander detected the empty space signifying the end of one unit, the machine paused the conveyor belt, giving Ray the opportunity to operate the machine and place plastic bands around each unit for shipping. JA 317, 505-08.

Ray complained that McDowell interfered with this process by stopping a conveyor belt and then restarting it, or by taking a unit off a conveyor belt and then putting it back on. JA 317, 367-68. Using these methods, McDowell caused units to arrive at the bander with no space between them. JA 317, 367, 430. The bander accordingly failed to detect where the first unit ended and prevented Ray from banding each unit separately, as her job required. JA 317, 367.

In response to Ray’s November complaint, Hyatt and Doug Stewart, the site manager, interviewed several employees, who largely corroborated Ray’s allegations. One coworker told them (JA 429):

He [McDowell] kept coming near our conveyor and standing there looking down at her [Ray]. He would be kicking out units when the line wasn’t backed up. He used to never do it, and now he comes a lot watching Tamika and kicking out units. He just stands there staring. It made me feel uncomfortable.

Another coworker told them: “Everyone on our crew said they think he is picking on her [Ray].” JA 429. A third confirmed Ray’s account that McDowell was interfering with production: “The line was running fine and the units were kicking out fine. Johnny turned off the line and started kicking units out. Don’t understand why he was doing that.” JA 429. As a result of this investigation, Stewart decided that there was no reason to discipline McDowell other than to instruct him not to manipulate the line. JA 505, 507-08.

On June 1, 2015, Ray complained that McDowell was still spending time just staring at her, and she said she could no longer “put up with Johnny[’s] behavior.” JA 319, 413-16, 456. Stewart and Ken Reeves (from HR) interviewed three employees about this allegation, but the record contains legible notes only on their interview with Nadine Brown. Brown told them that there were “a couple of things that disturbed her,” one being that McDowell “singles out Tamika—forces units out on the line to make it harder on her,” and that he had done that just the previous week. JA 456. Brown also reported that she had observed Ray “real upset” and “trembling” at work the previous Saturday. JA 456. Again, Stewart saw no reason to discipline McDowell.

Ray still works at IPC in the shipping department. She did not offer evidence that McDowell continued harassing her in a significant way after the end of 2015.

B. District Court Decision

In addressing Ray’s hostile-environment claim, the district court assumed that McDowell was Ray’s supervisor at all relevant times. JA 861-69 (applying Faragher-Ellerth law with respect to harassment by a supervisor). The court ruled, first, that McDowell’s alleged harassment of Ray did not lead to a tangible employment action. JA 862-64.

The district court then turned to whether IPC had established its Faragher-Ellerth affirmative defense by showing that it had exercised reasonable care to prevent and correct sexual harassment and that Ray had unreasonably failed to take advantage of the complaint avenues in the company’s anti-harassment policy or otherwise failed to prevent harm. On the first prong, the court quoted this Court’s statement in Matvia v. Bald Head Island Management, Inc., 259 F.3d 261 (4th Cir. 2001), that “dissemination of an effective anti-harassment policy provides compelling proof that an employer has exercised reasonable care to prevent and correct sexual harassment.” JA 865 (quoting Matvia, 259 F.3d at 268). It then stated:

The only way to rebut this proof is to show that the “employer adopted or administered an anti-harassment policy in bad faith or that the policy was otherwise defective or dysfunctional.”

JA 865 (quoting Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999)).

The court ruled that IPC’s policy was a reasonable effort to prevent harassment and that the company’s investigations of Ray’s complaints in September 2014 and later were reasonable efforts to correct the alleged harassment. JA 865-67. The court also found that Ray unreasonably failed to take advantage of IPC’s complaint mechanism because she “was aware of Defendant’s policy, but chose not to use it when the harassment began in 2003.” JA 868. “Because Plaintiff failed to follow Defendant’s complaint procedure,” the court ruled, “Defendant is not liable.” JA 868-69. The court therefore ruled that IPC had established its affirmative defense as a matter of law, and accordingly granted IPC summary judgment with respect to Ray’s hostile environment claim. JA 873.

Argument

I. The district court erred in ruling that IPC had established its affirmative defense as a matter of law.

If this Court should find that McDowell’s harassment did not result in a tangible employment action, it will presumably then review the district court’s rulings on IPC’s affirmative defense.[2] The Faragher-Ellerth affirmative defense requires IPC to prove that it exercised reasonable care to prevent and correct sexual harassment, and that Ray unreasonably failed to use the preventive and corrective options IPC provided (or to avoid harm otherwise). Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). IPC bears the burden of establishing each prong. Id. (“When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.”); Brown v. Perry, 184 F.3d 388, 395 (4th Cir. 1999) (“To escape liability for a supervisor’s harassment of a subordinate by means of this affirmative defense, an employer must prove by a ‘preponderance of the evidence . . . two necessary elements.’”) (quoting Faragher, 524 U.S. at 807).

When the evidence in the record is viewed in the light most favorable to Ray, as required on summary judgment, the district court erred in holding that IPC had carried its burden in showing that it was entitled to the Faragher-Ellerth affirmative defense.

A. IPC failed to establish as a matter of law that it exercised reasonable care to prevent and correct sexual harassment.

As to the first prong of Faragher-Ellerth, the district court erred in ruling that IPC exercised reasonable care to prevent and correct sexual harassment. Here, a reasonable jury could find both that IPC did not adequately train its supervisors to comply with its anti-harassment policy and that IPC did not enforce its policy reasonably or promptly with respect to Ray.

This Court has stated repeatedly that “dissemination of ‘an effective anti-harassment policy provides compelling proof’ that an employer has exercised reasonable care to prevent and correct sexual harassment.” Matvia, 259 F.3d at 268 (quoting Lissau v. S. Food Serv., Inc., 159 F.3d 177, 182 (4th Cir. 1998)). But, as the Supreme Court held in Faragher, the mere fact that the employer has an anti-harassment policy does not necessarily satisfy the first prong. Faragher, 524 U.S. at 808 (where employer failed to disseminate its policy to its beach employees or to monitor its beach supervisors, and policy did not allow an employee to complain about harassment by her supervisor to somebody above her supervisor, employer “could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct”). Accordingly, this Court has stressed that

the mere existence of a policy does not automatically “satisfy the employer’s burden. The employer must act reasonably, and thus any policy adopted by the employer must be both reasonably designed and reasonably effectual.”

Whitten v. Fred’s, Inc., 601 F.3d 231, 251 (4th Cir. 2010) (quoting Brown, 184 F.3d at 396 (4th Cir. 1999)), abrogated with respect to definition of “supervisor,” Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013).

Thus this Court has made it clear that the dissemination of an anti-harassment policy is not the end of the inquiry as far as the employer’s obligation is concerned. The employer cannot avail itself of the affirmative defense if the policy is inadequate, if the evidence shows that the employer did not enforce the policy reasonably and promptly, or if the employer failed to respond to a complaint of harassment with an adequate investigation and, if appropriate, with discipline reasonably designed to eliminate the harassment. See, e.g., Whitten, 601 F.3d at 236-37, 251 (granting judgment as a matter of law was error where the plaintiff offered evidence that when she reported the harassment to her district manager, he told her that she should go back to work under the harasser, and that they would deal with her complaint later); Howard v. Winter, 446 F.3d 559, 562-63, 569 (4th Cir. 2006) (holding that even though employer’s anti-harassment policy was adequate, employer was not entitled to affirmative defense as a matter of law where the plaintiff offered evidence that the policy was not implemented); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334-35 (4th Cir. 2003) (en banc) (employer’s policy was inadequate because it did not specifically address sexual harassment and it “fail[ed] to place any duty on supervisors to report incidents of sexual harassment to their superiors”; moreover, the employer’s open-door policy was not an adequate complaint avenue because neither of the two managers the plaintiff approached would listen to her complaints).

IPC relied on its anti-harassment policy to show that it acted reasonably to prevent harassment. The district court erred in ruling that the mere existence or promulgation of the policy met IPC’s burden. Here, a reasonable jury could find both that IPC did not adequately train its supervisors to comply with its anti-harassment policy and that IPC did not enforce its policy reasonably or promptly with respect to Ray.

An employer acting reasonably to prevent harassment must train its supervisors so that they understand the policy and their role in enforcing it. See, e.g., Homesley v. Freightliner Corp., 61 F. App’x 105, 116 (4th Cir. 2003) (district court properly instructed jury that in assessing the employer’s reasonable efforts to prevent harassment, it should consider whether the employer trained its workforce in the policy); Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205, 211-13 (5th Cir. 2016) (plaintiff raised factual dispute about employer’s reasonable efforts to prevent harassment with testimony that employees were not trained in the policy or given copies of it and never saw it posted); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 21-22 (1st Cir. 2002) (same); compare EEOC v. Xerxes Corp., 639 F.3d 658, 662, 664-66, 672 (4th Cir. 2011) (in affirming summary judgment for the employer, noting that the employer trained all its employees and supervisors in its anti-harassment policy at hire and retrained them annually).

IPC offered no evidence that it trained its employees or supervisors in its anti-harassment policy, and a reasonable jury could find that the company did not effectively train its supervisors. Ray conceded that the first time she complained to Owens in 2013 she asked him not to do anything about it because she was afraid that pursuing it would make things worse. But after that initial complaint and before her September 2014 complaint, Ray complained to Owens repeatedly that she needed to leave work because she was so upset by the way McDowell was treating her. She told Owens at least twice that McDowell was mistreating her because she wouldn’t “give him some.” IPC offered no evidence that Ray asked Owens not to do anything when she made these later complaints, and no evidence that Owens complied with the policy by reporting McDowell’s harassment of Ray to management. See JA 106 (harassment policy directing employees, including supervisors, to report harassment of which they become aware to management). The jury could accordingly find that even if IPC trained Owens in its policy, that training was not effective.

The jury could also find that, in the interim between her first complaint in 2013 and her September 2014 complaint, Ray repeatedly reported McDowell’s harassment in accordance with IPC’s policy, but IPC failed to respond to her complaints and investigate her allegations, as the policy promised the company would do. This evidence by itself should have precluded the district court from finding as a matter of law that IPC exercised reasonable efforts to prevent and correct harassment.

But the record reflects further deficiencies in IPC’s responses to Ray’s complaints. Ray complained in September 2014 that McDowell was repeatedly telling her he wanted to have sex with her. Two of the witnesses the company interviewed confirmed that McDowell had also told them that he wanted to have sex with her. See supra, p. 6. Ray complained again in November 2014 that McDowell was obstructing her performance of her duties and staring at her in an intimidating manner. The witnesses the company interviewed confirmed both allegations. See supra, pp. 8-9. She complained again in June 2015 that he was intimidating her in a way she could no longer tolerate, and her coworker Nadine Brown supported that account. See supra, pp. 9-10. In each case the company’s agents concluded that McDowell was doing nothing that violated the company’s anti-harassment policy. A jury could find that IPC’s conclusions were not reasonable. See, e.g., Homesley, 61 F. App’x at 113 (holding that record evidence was sufficient to support jury finding against defendant on Faragher-Ellerth in part because employer failed to investigate several of plaintiff’s complaints and “essentially ignored” harasser’s “stalking and staring at” plaintiff); Smith v. First Union Nat’l Bank, 202 F.3d 234, 245-46 (4th Cir. 2000) (holding that employer did not exercise reasonable care to correct promptly supervisory harassment in part because company official’s report noted harassing remarks but failed to characterize them as harassment or to follow up on other leads, and employer allowed harasser to continue working in close proximity to victim); Fuller v. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995) (employer’s investigation of plaintiff’s complaint of harassment was badly flawed, in part because employer gave insufficient weight to evidence supporting plaintiff); Marsh v. Dig. Equip. Corp., 675 F. Supp. 1186, 1193-94 (D. Ariz. 1987) (in employer’s investigation of plaintiff’s harassment complaint, “[s]tatements by Digital employees in support of Marsh, many of which flatly contradicted what the complaining women had stated, were simply ignored”).

Finally, the jury could also find that IPC imposed no discipline reasonably designed to stop McDowell’s harassment of Ray. See, e.g., Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 337 (4th Cir. 2010) (harassment was “imputable to the employer” in part because “the record is bereft of evidence demonstrating that any . . . administrator took affirmative steps to stop the harassment”); Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1242-43 (10th Cir. 1999) (“While we do not suggest that disciplinary action is always required to establish the adequacy of the employer’s response, it obviously is relevant to our analysis of the adequacy of that response.”), overruled on other grounds, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

The record in this case is more than sufficient to support a jury finding that IPC acted unreasonably in failing to investigate Ray’s earlier complaints and in concluding that the witnesses’ statements in the investigations it did conduct did not support Ray’s allegations that McDowell was harassing her. These findings would mean that IPC was not exercising reasonable care to correct McDowell’s harassment, and accordingly the district court erred in granting summary judgment to IPC on the first prong of the Faragher-Ellerth affirmative defense.

B. The district court erred in ruling that Ray’s failure to report McDowell’s harassment to IPC prior to 2013 barred her from suing the company for the harassment she did report.

The district court erred in ruling that Ray’s failure to complain about McDowell’s harassment prior to 2013 bars her from recovering for the harassment in 2013 through 2015 about which she did complain promptly. Ray testified that McDowell started harassing her in 2003, and she conceded that she did not lodge any internal complaints about this harassment until 2013. According to the district court, because Ray did not complain to management for those first ten years, the defendant cannot be liable for any of McDowell’s alleged harassment of her—even the harassment in 2013 through 2015. JA 868-69. This ruling was error. The district court cited no authority supporting it, nothing in the text of Title VII requires it, and the relevant case law and the Congress’s purposes in enacting the law support the opposite result.

The Supreme Court has not addressed how promptly an employee must report harassment to her employer, but it has addressed the analogous issue of how promptly an employee must file an administrative charge of discrimination alleging a hostile work environment. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Court drew a distinction between charges alleging discrete discriminatory acts, such as termination, failure to promote, denial of transfer, or refusal to hire, and those alleging hostile work environments. The Court ruled that a charge challenging a discrete act must be filed within 180 or 300 days from when the employment action was taken. Id. at 110-13 (applying time limits set out in 42 U.S.C. § 2000e-5(e)).[3] A hostile environment, however, “occurs over a series of days or perhaps years.” Id. at 115. Accordingly, the Court held, as long as the employee files her charge within 180 or 300 days of some act that contributed to the hostile environment, the charge is timely as to the entire hostile environment, including acts that occurred more than 180 or 300 days before the employee filed her charge. Id. at 116-18; see especially id. at 117 (“Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.”).

The Court’s analysis in Morgan suggests that, just as an employee’s failure to file a charge of discrimination earlier in a hostile work environment does not preclude her doing so later, any delay in her complaining to her employer does not automatically relieve the employer of liability for the entire hostile environment, including ongoing harassment. See Morgan, id. at 117 (“Subsequent events . . . may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole.”).[4]

As the Morgan Court also noted, its “holding does not leave employers defenseless against employees who bring hostile work environment claims that extend over long periods of time.” Id. at 121. It explained that where a plaintiff delays unreasonably in bringing suit, “the federal courts have the discretionary power ‘to locate a just result in light of the circumstances peculiar to the case.’” Id. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25 (1975)). The Morgan Court also pointed out that when a plaintiff unreasonably delays filing a charge, the employer “may raise a laches defense, which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant.” Id. at 121.[5]

As the Commission has stated repeatedly in its guidance documents on harassment, an employee’s failure to alert the employer reasonably promptly to harassment should be considered as one of the significant factors in the court’s fact-based, totality-of-the-circumstances assessment of the alleged hostile environment and the employer’s response. The employer can sometimes rely on the plaintiff’s failure to complain as grounds for dismissing the action or, more often, reducing the damages. See, e.g., Faragher, 524 U.S. at 807 (authorizing employers to “raise an affirmative defense to liability or damages” (emphasis added)); EEOC, Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors (1999), § V.B, at EEOC Compliance Manual (BNA) [hereinafter, “Compl. Man.”] 615:107, available at https://www.eeoc.gov/policy/docs/harassment.html (“The defense . . . limits damages where the employee reasonably could have avoided some but not all of the harm from the harassment.”); id., § V.D, at Compl. Man. 615:112 (if the employer proved it exercised reasonable care to prevent and correct harassment, and the victim failed to complain promptly, the employer “is not liable for unlawful harassment if the aggrieved employee could have avoided all of the actionable harm [by complaining promptly]. If some but not all of the harm could have been avoided, then an award of damages will be mitigated accordingly.”).[6]

Two hypotheticals illustrate the problem with the district court’s ruling. In the first, an employee experiences harassment for two years, the harassment is not open and obvious, the victim does not complain until the twenty-third month, and once the employee complains, the employer promptly investigates and ends the harassment by disciplining the harasser. On facts like these, the employer may be able to avoid any liability for the harassment if it convinces the jury that it would have eliminated the harassment at the beginning if the victim had complained about it then. In the second, the harassment lasts for twelve years, the employer has no actual or constructive notice of the harassment during the first decade, the victim complains to the company in the eleventh year, and the employer takes a year to conduct an adequate investigation and end the harassment. In this scenario, the victim’s failure to complain during the first decade may relieve the employer of liability for the damages incurred during that period, but not of liability for the harassment in years eleven and twelve that the victim complained about and that the employer failed to investigate and eliminate promptly.

Finally, one of Congress’s primary goals in enacting Title VII was to eliminate employment discrimination and protect employees from the resulting harm. Faragher, 524 U.S. at 805-06 (Title VII’s “primary objective” is “to avoid harm”); Ford Motor Co. v. EEOC, 458 U.S. 219, 230 (1982) (“Title VII’s primary goal . . . is to end discrimination.”) (emphasis omitted). The district court’s rule would obstruct the achievement of that goal by deterring harassment victims who endure a period of harassment without complaining from ever using Title VII to challenge continuing harassment. Title VII should not be interpreted to provide immunity to ongoing harassment.

II. Summary judgment for IPC would also be inappropriate under the negligence paradigm applicable to coworker harassment cases.

This Court may rule that McDowell was no longer Ray’s supervisor after she transferred to the shipping department in early 2013. If so, the district court erred in applying the Faragher-Ellerth affirmative defense to McDowell’s harassment of Ray after the transfer. The district court should instead have asked whether IPC was liable for the post-transfer harassment because it acted negligently. Howard, 446 F.3d at 567 (where harasser was plaintiff’s coworker, employer is liable for harassment only if “it was negligent ‘in failing, after actual or constructive knowledge, to take prompt and adequate action to stop it’”) (quoting Mikels v. City of Durham, 183 F.3d 323, 332 (4th Cir. 1999)); Ocheltree, 335 F.3d at 333-34 (“In a case where an employee is sexually harassed by a coworker, the employer may be liable . . . if it knew or should have known about the harassment and failed to take effective action to stop it.”).

Here, summary judgment would have been error under the negligence paradigm because Ray raised a factual dispute about whether IPC was negligent. An employer has no duty to act under the negligence theory until it knows or should have known of the harassment. Ocheltree, 335 F.3d at 334. Thus the first question is “when [IPC] had actual or constructive notice” of McDowell’s harassment. Howard, 446 F.3d at 567. It is undisputed that IPC had actual notice of the harassment when Ray complained in September 2014. The question is whether IPC had actual or constructive notice before that.

This Court should rule, as have several other courts of appeal, that when a harassment victim complains to a person who is designated in the company’s anti-harassment policy as a person to receive complaints, the company has notice of the harassment. See, e.g., Noviello v. City of Boston, 398 F.3d 76, 97 (1st Cir. 2005) (finding that, “where Plaintiff complained of [coworker] harassment to . . . appropriate recipients of [her] complaints, there is enough evidence to allow a finding of actual notice on the city’s part”); Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000) (“When an employer has a policy for reporting harassment that is clear and published to its employees, and an employee follows that policy, the employer’s notice of the harassment is established by the terms of the policy.”); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir. 1998) (plaintiff’s complaint to her supervisor gave company notice both because company’s policy authorized complaints to one’s supervisor and because policy imposed duty on supervisors to report harassment to management); Young v. Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997) (since employer’s anti-harassment policy said employees could complain to their department heads, plaintiff’s complaint to her department head constituted notice to the company). Thus IPC had notice of McDowell’s harassment when Ray complained to Owens about it.[7]

The second issue is whether IPC failed to “take prompt and adequate action to stop” the harassment. Howard, 446 F.3d at 567. Ray offered evidence raising a factual dispute on this issue, too. There is no evidence that IPC responded to Ray’s repeated complaints to Owens at all. An employer’s failure to investigate shows negligence. See, e.g., EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 177 (4th Cir. 2009) (employer was negligent if it failed to investigate victim’s complaints); Howard, 446 F.3d at 569-70 (same). In addition, as described above, Ray offered evidence that the investigations IPC conducted following Ray’s complaints in September 2014 through June 2015 were seriously flawed because they disregarded statements by coworkers corroborating Ray’s allegations (see supra, pp. 6, 8-10). A jury could also find IPC negligent based on this evidence. See Central Wholesalers, 573 F.3d at 178 (inadequate investigations show negligence); Howard, 446 F.3d at 570 (same). Ray’s evidence that IPC failed to take disciplinary actions reasonably calculated to stop McDowell’s harassment also showed the company’s negligence. See Central Wholesalers, 573 F.3d at 178 (so holding).

It would therefore be inappropriate for this Court to affirm the district court’s summary judgment order on this alternate ground, because summary judgment for IPC based on the negligence theory would be error.

Conclusion

Accordingly, this Court should reverse the district court’s summary judgment order and remand for further proceedings.

Respectfully submitted,

[1] The Commission takes no position on any other issues this appeal may raise.

[2] The Commission realizes that this Court may rule that once Ray transferred to the shipping department, McDowell was no longer her supervisor, and that the district court should therefore have resolved Ray’s claim with respect to the post-transfer harassment under the negligence standard applicable to coworker harassment claims. We address this alternative infra.

[3] Even in the discrete acts context, though, the Morgan Court held, “[t]he existence of past acts and the employee’s prior knowledge of their occurrence . . . does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.” 536 U.S. at 113. Thus an employee’s failure to file a timely charge as to earlier discrimination does not bar her from filing a timely charge with respect to (and recovering for) later discrimination.

[4] Moreover, Morgan offers several other helpful principles to guide courts in determining when harassment that stretches over a period of time constitutes the same hostile work environment, including whether the alleged acts are sufficiently related to one another or whether “certain intervening action by the employer” created a break in the hostile environment. Id. at 118, 120. These same principles are equally relevant to a court’s analysis of employer liability.

[5] Laches is not available to IPC in this case, however, because the hostile environment Ray was challenging continued into 2014 and 2015, and “current, ongoing conduct . . . cannot be so remote in time as to justify the application of the doctrine of laches.” Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 799 (4th Cir. 2001).

[6] The Commission has proposed a revised harassment guidance, published for public input on January 10, 2017, that makes the same point: “[I]f the employee unreasonably delayed complaining and an earlier complaint could have reduced the harm, then the employer might be able to use the affirmative defense to reduce damages, even if it could not eliminate liability altogether.” Proposed Enforcement Guidance on Unlawful Harassment, IV.B.2.b.iii, at p. 51, available at https://www.regulations.gov/document?D=EEOC-2016-0009-0001.

[7] Again, even if Ray’s first complaint to Owens did not give IPC notice (because she asked Owens not to do anything about it), her subsequent complaints to Owens did give the company notice.