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Arquero v. Hilton Hawaiian Village LLC6/10/2004
tted). See also McGinest v. GTE Service Corp., 360 F.3d 1103, 1120 (9th Cir. 2004) ("The reasonableness of the remedy depends on its ability to: (1) stop harassment by the person who engaged in the harassment; and (2) persuade potential harassers to refrain from unlawful conduct. To be adequate, an employer must intervene promptly. Remedial measures must include some form of disciplinary action which must be proportionate[ ] to the seriousness of the offense[.]" (Citations and internal quotation signals omitted.) (First alteration in original.)). Whether an employer's response is reasonably calculated to end the harassment depends on the circumstances of the particular case:
Here we add that what is reasonable depends on the gravity of the harassment. Just as in conventional tort law a potential injurer is required to take more care, other things being equal, to prevent catastrophic accidents than to prevent minor ones, Gottschall v. Consolidated Rail Corp., 988 F.2d 355, 375 (3d Cir.1993); W. Page Keeton et al., Prosser and Keeton on the Law of Torts ยง 34, p. 208 (5th ed. 1984), so an employer is required to take more care, other things being equal, to protect its female employees from serious sexual harassment than to protect them from trivial harassment. Ellison v. Brady, 924 F.2d 872, 882 (9th Cir.1991); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir.1987). Had [the harassing employee] assaulted [the victim], due care might have required the company to fire him on the spot.
Baskerville v. Culligan Intern. Co., 50 F.3d 428, 432 (7th Cir. 1995) (emphasis added). In some circumstances, when an employer first learns that an employee is harassing a co-worker, an oral warning (coupled with the threat of future disciplinary action should the harassing behavior continue) may be sufficient to satisfy the employer's obligation to take appropriate steps to end the harassing behavior. See, e.g., Scarberry v. Exxonmobil Oil Corp., 328 F.3d 1255, 1259 (10th Cir. 2003) (" fter an investigation, [the harassing employee] was individually counseled regarding inappropriate behavior and company policy regarding harassment. He was also warned that [the employer] would not tolerate harassment in the workplace nor retaliation as a result of the investigation. This response was prompt and adequate as a matter of law."); Intlekofer v. Turnage, 973 F.2d 773, 779-80 (9th Cir. 1992) (holding that an oral warning may be sufficient "where the harassing conduct is not extremely serious"). In other circumstances, harsher disciplinary action may be required. See Baskerville, 50 F.3d at 432 ("Had [the harassing employee] assaulted [the victim], due care might have required the company to fire him on the spot.").
Generally, whether an employer's response to harassment was reasonably calculated to end the harassment is a question for the finder of fact. See Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) ("The employer acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not reasonably likely to prevent the misconduct from recurring. [The employer's] promptness in taking corrective action in this case is not in question, but only the effectiveness of the action it took. That is a question of fact[.]"); see also Smith v. St. Louis Univ., 109 F.3d 1261, 1265 (8th Cir. 1997) (" genuine issue of fact exists as to whether the [employer] failed to take proper remedial action. . . . The [employer's] response was by no means immediate, and [the plaintiff] should have the opportunity to argue to a jury that the response was not prompt enough (given all the circumstances), and thus made it not "proper" for some reason[.]"); Bernard v. Calhoon Meba
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