Sexual Harassment in the Workplace

Allowing Employers Time to Investigate Sexual Harassment Complaints? The Eighth Circuit Weighs In

On March 4, 2021, the Eighth Circuit affirmed a trial court’s dismissal of a sexual harassment and retaliation case brought by a former Whirlpool employee against Whirlpool. See, e.g., Lopez v. Whirpool Corp., No. 19-2357 (8th Cir. Mar. 4, 2021). The Eighth Circuit’s decision is based, in significant part, on the employee resigning before the employer had “a reasonable time” to investigate her complaint and take appropriate corrective action.

Factual Background

Heather Lopez (“Lopez”) worked for Whirlpool on refrigerator production lines for about a year and a half, from March 2015 through August 2016. Lopez claimed she was sexually harassed, or otherwise subjected to a hostile work environment, by a co-worker—Brian Penning (“Penning”)—over about a year-long period. She alleged this harassment first started in 2015 in the form of unwelcome touching, comments, and “just violating [her] space in general.” According to Lopez, such conduct continued “occasionally” for months.

In April 2016, Lopez won a weight-loss contest at work, at which time she claimed Penning’s unwelcome conduct became more problematic. Unwelcome touching, such as Penning touching Lopez with his groin from behind, continued. However, Lopez did not report such unwelcome touching to Whirlpool’s HR department, any supervisor, or Lopez’s union. According to Lopez, she believed reporting every incident “would have been redundant” and would have likely “irritated the hell out of” her supervisor.

Nonetheless, Lopez contended her supervisor knew she wanted Penning to stay away from her due to unwelcome physical interactions. In particular, after one conversation between Lopez and her supervisor, the supervisor told Lopez that she’d talk with Penning about Lopez’s concerns.

In the summer of 2016, however, this supervisor was moved to a different production line and role. According to Lopez, this resulted in Penning assuming and performing supervisory-like functions, such as distributing labor, directing work, and addressing issues on the line.

In August 2016, three incidents occurred. The first incident occurred on August 11, when Penning assigned Lopez a task she was unqualified to perform. Lopez refused to do the task and demanded to speak with HR and her union representative. Penning initially considered it insubordination and denied her request. Eventually, however, Penning capitulated and took her to HR. Lopez’s former supervisor met with her (but not HR or the union). According to Lopez, the supervisor acknowledged the merits of her concern, and recommended she bid on a spot on a different line.

The second incident concerned co-workers (but not Penning) ignoring her request on August 16 for a brace to avoid re-injuring her shoulder. The third incident concerned August 17, when Penning instructed Lopez to wear personal protective equipment in a stuffy, hot area. Lopez refused to do so without a fan. Penning did not address the temperature and threatened to terminate Lopez. Lopez then went to HR.

That same day, Lopez met with HR and union representatives and submitted her first written complaint. This complaint pertained to these three incidents in August. It did not mention Penning’s harassment, but Lopez claimed she “spilled [her] guts” to the HR and union representatives during this meeting about “everything” with Penning. According to Lopez, the written complaint did not mention harassment by Penning because she was asked to provide only a “quick summary” of the recent incidents. Lopez was told her complaint would be investigated.

On August 22, Penning hovered close to Lopez’s workspace and stared at her for an hour. Lopez phoned an HR representative, stating she felt Penning was angry and retaliating against her. According to Lopez, the HR representative asked her whether she was sure she was not overreacting. A day later, on August 23, Penning engaged in similar conduct staring at Lopez, but Lopez did not report it.

Nonetheless, on August 23, Lopez left Whirlpool a voicemail and resigned, stating she no longer felt safe at work and did not want to work in a place where she worried all the time. Lopez thereafter sued Whirlpool for sex discrimination and retaliation. The trial court granted Whirlpool summary judgment on all her claims and Lopez appealed.

Sexual Harassment Analysis

The Eighth Circuit began its analysis by reciting the elements of hostile work environment claims based on co-worker harassment:

  1. The employee belongs to a protected group;
  2. The employee was subject to unwelcome sexual harassment;
  3. The harassment was based on sex;
  4. The harassment affected a term, condition, or privilege of employment; and
  5. The employer knew or should have known of the harassment and failed to take proper remedial action.

Looking at the fourth element, the Eighth Circuit first noted that, in its view, the evidentiary record did not meet the “high bar” and “exacting standard” for proving the conduct at issue was “sufficiently severe or pervasive” to constitute “harassment affecting employment,” under Eighth Circuit precedent. This was true even though the Eighth Circuit acknowledged the record contained evidence of repeated unwelcome touching and other conduct, and even though the court “condemn[ed]” Penning’s conduct.

The Eighth Circuit further reasoned that, even if the conduct did meet such “high bar” or “exacting standard,” Whirlpool could not be held liable for Lopez’s co-worker’s harassment because she could not prove that Whirlpool failed to take immediate and appropriate action. To reach this conclusion, the Eighth Circuit relied on Lopez’s admission to her supervisor that “everything was fine” for months, and her failure to mention, or specifically identify, ongoing harassment by Penning in connection with the August incidents and complaint.

But the Eighth Circuit did not stop there. It stated, even if Lopez did bring up the ongoing harassment in August by virtue of “spill[ing] [her] guts” to HR about “everything” with Penning, Whirlpool still would not be liable because “Lopez resigned four business days later, without giving Whirlpool a reasonable time to address her complaint.” The Eighth Circuit cited precedent suggesting twenty-one (21) days was a reasonable time, but did not otherwise clarify what “reasonable time” means or whether there is a specific temporal cutoff in that regard.

Finally, the Eighth Circuit concluded that, because Lopez did not provide Whirlpool “reasonable time” to investigate and act, Lopez also could not have been “constructively discharged.”


The Eighth Circuit continues to impose very difficult burdens and legal standards on employees who seek to hold their employers liable for the actions of other non-management employees. Lopez introduces yet another hurdle for employees bringing such claims.

While each case is fact-specific and few (if any) bright-line rules exist in these types of cases, one takeaway from Lopez seems clear: in general, employees subject to harassment by a co-worker must give their employer more than four (4) days to investigate a complaint about such harassment and act accordingly. In other words, Lopez appears to suggest that four (4) days does not provide employers “reasonable time” to investigate and act on harassment complaints.

In any event, Lopez serves as a cautionary tale that resigning “too soon”—even after reporting repeated unwelcome touching and other inappropriate conduct over many months—may insulate the employer from any liability for the co-worker’s misconduct. Whether one considers this result fair or not, it is the law in the Eighth Circuit. Stay tuned for further legal developments in this space.