As set forth in Blackmon v. Wal-Mart Stores E. LP d/b/a Wal-Mart, No. 09-11953 (11th Cir. Dec. 23, 2009) and Young v. Temple Univ. Hosp., No. 08-4375 (3rd Cir. Dec. 31, 2009) an employer's obligation upon learning of co-worker harassment is to take prompt and adequate remedial action. An employer's remedial action is generally considered adequate if it is "reasonably calculated" to end the harassment, even if it is not ultimately effective. Accordingly, where an employer reasonably determines that certain actions are likely to end the harassment, those actions may preclude liability despite the fact that they differ from the actions requested by the plaintiff.

In Blackmon v. Wal-Mart Stores E. LP d/b/a Wal-Mart, a male employee made several sexual remarks to a female employee. The female employee complained to an assistant manager, per the company's policy. After each inappropriate remark, the assistant manager reprimanded the male employee. In a final incident, the male employee touched the female employee's breast. The company investigated and fired the male employee less than two weeks later. The male (former) employee continued to visit the store, telling the female employee that she would be fired. The employer told the female employee to walk away from her cash register when the male (former) employee came into the store.

In her lawsuit, the female employee alleged the employer had not taken prompt and remedial action, particularly prior to the touching incident. Additionally, the female employee believed the male (former) employee should have been banned from the store after he was terminated. The court disagreed, finding that the employer's reprimands to the male employee and further termination of the employee within two weeks of the touching incident constituted prompt remedial action. The court found the female employee's contention that the male (former) employee should have been banned from the store unavailing in light of these facts.

In Young v. Temple Univ. Hosp., a female certified occupational therapist complained that her male subordinate refused to take directions from her and on one occasion raised his voice to her, "screaming and spitting" in her face. After each incident, the male employee was verbally disciplined. Subsequently, the female employee complained again when the male employee bumped into her and blocked her passage. The male employee was suspended for one day. Thereafter, other employees also complained about the male employee, with one woman alleging that he touched her inappropriately. The female certified occupational therapist contended that the male employee should have been transferred out of the department. The employer, however, chose to follow its progressive discipline process and gave the male employee a final written warning. The male employee subsequently inappropriately touched another female employee and was terminated pursuant to the organization's progressive discipline process.

The female employee sued, claiming that the employer failed to take prompt and adequate remedial action given that it did not transfer the male employee out of the Occupational Therapy Department. The court disagreed, finding that the employer's "failure to take that step, however, does not by itself render its remedial actions." The court found that the employer acted reasonably in seeking to take the necessary steps to terminate him and therefore completely remove him from the workplace.

Accordingly, employers need not necessarily implement the corrective action recommended by the victim of sexual harassment; instead, employers should carefully assess the situation and take those actions that are reasonably calculated to end the harassment.