In two Supreme Court cases, the court established employers are subject to liability for unlawful harassment by supervisors resulting in a tangible employment action, such as a firing, a demotion or assigning undesirable work. Since then, thousands of unlawful harassment suits have been filed against employers.
The lawsuits established if harassment by a supervisor results in a tangible employment action, you cannot present any defenses. However, if harassment by a supervisor does not result in a tangible employment action, you can present a defense.
A defense to such a claim consists of two necessary elements: you exercising reasonable care to prevent or promptly correct any harassment and the harassed employee unreasonably failing to avoid harm and take advantage of any preventive or corrective opportunities you have provided.
You probably are aware you must establish, publicize and enforce anti-harassment and anti-discrimination policies and complaint procedures to have any hope of meeting the first element of the defense. But though you may be aware of the need to have such policies, effective implementation is critical to a defense.
Some guidelines
To avoid company liability for harassment by supervisors, you must show more than a piece of paper. If an employee or former employee files a discrimination or harassment charge with the Equal Employment Opportunity Commission (EEOC), EEOC will investigate the allegations and request your anti-harassment and anti-discrimination policies. Once it has your policies, EEOC will focus on whether the policies are effective and followed. The law provides little guidance as to what constitutes an effective anti-discrimination or anti-harassment policy.
To assist employers in meeting the defense, in 1999, EEOC published its Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, which can be accessed at www.eeoc.gov/policy/docs/harassment.html. The guidance focuses on how you can properly investigate harassment or discrimination complaints; doing so will help in your defense to a claim.
EEOC notes all employers should make clear to their employees that harassment allegations will be kept confidential to the extent possible. Although EEOC acknowledges you will not be able to conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses, the guidance states that only those employees who need to know should be provided information about a harassment allegation. The same rules regarding confidentiality apply to records or documents relating to the alleged harassment.
Once a claim is reported, the guidance is explicitly clear that the employer's investigation must be prompt, thorough and impartial.
Fact-finding investigations should be launched immediately by human resources personnel, internal security, non-attorney third-party investigators, outside counsel and/or in-house counsel. Regardless of who conducts the investigation, interviews with the complainant, alleged harasser and third parties who reasonably could be expected to have relevant information must be conducted.
Before any interviews, it may be necessary to set up interim remedial measures to avoid further harassment. Examples of such measures set forth in the guidance include limiting contact between the parties, transferring the alleged harasser or placing the alleged harasser on non-disciplinary leave with pay pending the investigation's conclusion.
As for the investigation itself, EEOC's guidance provides examples of questions that may be appropriate to ask the involved parties and witnesses. Some questions to ask the complainant are:
Examples of questions to ask the alleged harasser are:
Examples of questions to ask third parties are:
Making a decision
After interviews are completed, there often are conflicting accounts and disputes of fact. How these disputes are resolved also will determine whether an investigation is effective. The guidance offers the following factors to consider when making a credibility determination:
EEOC offers these factors for consideration, but the guidance acknowledges that none of the factors alone determine credibility. For example, the guidance notes that just because there are no eyewitnesses to an alleged harassment does not necessarily defeat the complainant's credibility. Also, the fact that an alleged harasser engaged in similar behavior in the past does not necessarily mean he or she would do it again.
Once credibility issues are resolved, a determination of whether the harassment occurred must be made. All parties should be informed of the determination. If a determination cannot be made because the evidence is inconclusive, the guidance suggests employers undertake further preventive measures, such as training and monitoring.
If the determination is made that the alleged harassment occurred, you must show you took immediate and appropriate corrective action if you hope to successfully argue an affirmative defense. The guidance suggests remedial measures be designed to stop the harassment, correct its effects on the complainant and ensure the harassment does not recur while not adversely affecting the complainant. In this regard, the law does not require that the harasser be terminated. Indeed, the guidance acknowledges disciplinary measures should be proportional to the seriousness of the offense. For example, for cases involving a small number of off-color remarks by an individual with no prior history of similar misconduct, appropriate remedial measures may include counseling and an oral warning.
The guidance provides examples of measures to stop the harassment and ensure it does not recur, such as transfer or reassignment of the harasser, demotion, wage reduction, suspension, training or counseling. Examples of measures to correct the effects of the harassment set forth in the guidance include restoration of leave taken because of the harassment, expunging negative evaluations that arose from the harassment, apology by the harasser, and providing compensation for any other harm or loss caused by the harassment.
Some cases
Although the guidance is not binding in courts, it is a persuasive authority considered and frequently adopted by courts.
Take, for example, the case of Speaks v. City of Lakeland. In this case, Sandra Speaks sued the city of Lakeland alleging the city allowed her to be sexually harassed by her supervisor. Speaks was employed by the city as a public safety aide from September 1998 through June 15, 2001. Beginning in May or June 2000, Sergeant Michael Chin made sexual advances toward Speaks. Speaks acquiesced to Chin's advances and had sexual intercourse with him. According to Speaks, she acquiesced because she feared Chin would harm her and fire or transfer her if she did not give in to his advances.
On June 14, 2001, Speaks and Chin argued. While Speaks was away from her desk, Chin placed a note on her desk threatening to transfer her to a squad supervised by a supervisor she did not like. That night, Speaks reported the incident to her husband who, in turn, reported Chin's misconduct to the police.
The department began its investigation the next day. Two investigating officers conducted 18 interviews and collected physical evidence from the locations where Speaks and Chin engaged in sexual activities. While the investigation was ongoing, the city gave Speaks a choice of working in another area where she would not have contact with Chin or staying at home with full pay. Speaks chose to stay at home with full pay.
On Aug. 23, the department's investigation concluded. The department determined Speaks and Chin engaged in an inappropriate consensual sexual relationship. The department also concluded there was insufficient evidence that the sexual relationship was unwelcome. Therefore, the department concluded Speaks' and Chin's relationship did not meet the definition of wrongful sexual conduct as defined in the city's harassment policy. The department demoted Chin from the rank of sergeant to patrol officer, transferred him to night duty with a different unit and suspended him for two weeks without pay.
The city raised an affirmative defense to supervisor harassment by arguing it exercised reasonable care to prevent and promptly correct the sexual harassment. Speaks argued the city did not act reasonably to correct the harassment because the city did not fire Chin.
Quoting EEOC's guidance, the court stated remedial measures are deemed reasonable when they stop harassment, correct its effects on the complainant and ensure harassment does not recur. The court ultimately concluded the city acted reasonably in correcting the harassment. Its conclusion was based on the immediate commencement of the investigation and the department allowing Speaks to remain at home with full pay. The court also noted Speaks was offered her job without Chin as her supervisor or a job in another department. Finally, the court noted Chin was severely punished by demotion, suspension and transfer and no longer was allowed to supervise anyone.
Another example is the case of Nancy Rennard v. Woodworker's Supply. Rennard began working for Woodworker's Supply in September 2000. During her orientation, she signed a copy of the company's policies, including its sexual harassment policy, which stated any harassment was to be reported to management in writing within one week of its occurrence. The policy prohibited retaliation against any employee who made a good faith report of harassment, but it also indicated that failing to report any harassing activity could result in discipline.
During her first three months of employment, Rennard began to experience offensive conduct she believed rose to the level of harassment. On Nov. 30, she reported the incidents to her supervisor who, in turn, immediately reported the same to the company's human resource director. The next day, the human resource director met with Rennard. Following that meeting, the human resource director went to the company's chief executive officer to obtain authorization to retain an attorney to conduct an investigation into the allegations raised by Rennard.
In the meantime, on Dec. 2, Rennard was again inappropriately touched by the alleged harasser. On Dec. 6, an attorney conducted an investigation by interviewing Rennard, the alleged harasser and another employee who may have been involved in the alleged harassment.
Based on the investigation, the alleged harasser was suspended for two days without pay and instructed to have no contact with Rennard. The alleged harasser was told he would be severely disciplined or terminated if he contacted her or violated the company's sexual harassment policy.
Rennard also was disciplined for failing to report the earlier incidents of offensive conduct in writing within one week of their occurrences.
On Dec. 18, Rennard filed a complaint with the Wyoming Department of Employment's Fair Employment Program. That complaint initiated an investigation that revealed the alleged harasser had inappropriately touched other women in the workplace. When this was reported to Woodworker's Supply, its human resource director conducted a further investigation. When the new allegations were confirmed, the company asked the alleged harasser to resign, which he did.
Rennard sued Woodworker's Supply for sexual harassment. The trial court dismissed her claims without her case getting to a jury because it concluded the company had properly responded to the complaint and its actions were effective. The court noted the company immediately investigated Rennard's reports through an outside investigator; suspended the alleged harasser and issued a written warning; and then, after learning of other instances of misconduct, conducted a further investigation and ultimately obtained his resignation. The court also concluded no jury could reasonably find that Woodworker's Supply failed to take corrective action because it didn't take action against the harrasser within 24 hours of Rennard's report.
Contrast the actions taken by Woodworker's Supply with the inactions of the Washington, D.C., police department in response to a sexual harassment claim. Barbara Cromer-Kendall was a police officer with the District of Columbia's Metropolitan Police Department. During her employment, she began to experience events giving rise to a claim of sexual harassment by a supervisor.
One particular incident occurred June 26, 1998, and was reported to her direct supervisor within one week. Cromer-Kendall was told by her direct supervisor that he would take care of it. Shortly thereafter, on July 7, Cromer-Kendall encountered another experience of sexual harassment by the same alleged harasser. This was reported by Cromer-Kendall to her direct supervisor the same day.
Cromer-Kendall contended that when she reported the July 7 incident, her direct supervisor laughed and agreed to intercede while telling her to calm down. In addition to reporting the incident to her direct supervisor, she also reported it to the deputy chief, who told her to report her complaints to the police department's equal employment opportunity (EEO) office. Cromer-Kendall filed a report with the EEO office in April 1999. She was then transferred to a different area but because she and the alleged harasser worked the same hours, she continued to see the harasser.
Ultimately, Cromer-Kendall filed a lawsuit alleging sexual harassment. The police department sought to have the case thrown out by arguing that it met the affirmative defense established by Supreme Court precedent. The police department relied on the fact that it maintained a sexual harassment policy and advised Cromer-Kendall to take her complaint to the EEO office.
Nevertheless, in view of the case's facts, the court concluded the police department could not show Cromer-Kendall unreasonably failed to take advantage of any preventive or corrective opportunities provided. Although the department advised her to seek the assistance of the EEO office, it did nothing to investigate her claims. Moreover, though the direct supervisor responded to one of her complaints by saying he would take care of things, he also purportedly burst into laughter.
Because the supervisor failed to take the matter seriously and failed to follow EEOC's enforcement guidelines, this case will go to a jury where the police department will face the potential of serious liability.
Other protections
Although promptly and thoroughly investigating all harassment complaints will help you avoid liability, there are other preventive and corrective measures you can take.
For example, the guidance makes clear that employers must ensure supervisors understand their responsibilities under the company's anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Any management training provided should explain the types of conduct that violate the anti-harassment policy, seriousness of the policy, responsibilities of supervisors and managers when they learn of alleged harassment, and prohibition against retaliation.
For small companies that lack the resources to implement a formal complaint process, the guidance offers an alternative. The guidance provides that if a small business puts into place an effective, informal mechanism to prevent and correct harassment, it still can satisfy the first prong of the affirmative defense to a harassment claim. For example, a small company may effectively communicate its prohibition and complaint procedures in monthly staff meetings as opposed to disseminating a written policy.
If you follow the guidance's recommendations and take prompt and appropriate corrective action to respond to unlawful harassment, it will go a long way to avoiding liability.
Philip J. Siegel is a partner with the Atlanta-based law firm Hendrick, Phillips, Salzman & Flatt.
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