Tag Archives | policy

Invoking the affirmative defense in harassment cases

By on February 15, 2012 in Our Blog

The recent case of Crawford v. BNSF Railway Company illustrates when and how an employer can invoke the Ellerth/Faragher “affirmative defense” to avoid liability.  Five mid-level supervisory employees claimed they were subjected to sexual and racial harassment by their supervisor.  They endured the alleged harassment for months and then collectively filed an EEOC charge.  Then, they reported the alleged harassment internally.  As soon as they did, the employer initiated an investigation that resulted in the termination of the alleged harasser.  The plaintiffs claimed they waited to report the conduct because they (a) feared retaliation and (b) wanted to build up evidence against the alleged harasser.

In response to the subsequent lawsuit, the employer invoked the affirmative defense.  First it claimed it exercised reasonable care to prevent and promptly correct any harassing behavior.  Next it claimed the employees “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.”  Both the lower court and the Eighth Circuit agreed.

With respect to the first prong of the defense, the employer distributed and trained on a comprehensive anti-harassment policy that contained a specific complaint procedure for would-be victims to follow.  Interestingly enough, the court held the plaintiffs needed to follow this procedure, notwithstanding the fact that the alleged harasser was himself a supervisor.  Their claim that they did not because, in part, they wanted to collect more evidence against the alleged harasser was not a valid reason to delay reporting.  Accordingly, the employer also satisfued the second (and typically harder to prove) prong of the defense.

The upshot:  Have a comprehensive policy that outlines a specific complaint procedure.  Distribute it to all employees and train them on it.

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Bad investigation supports punitive damages claim

By on July 20, 2010 in Our Blog

The Sixth Circuit recently upheld a jury award of over a million dollars to a plaintiff who had been employed for a mere five weeks.  In West v. Tyson Foods, Inc., the plaintiff claimed she was sexually harassed by a number of male co-workers.  Per her employer’s policy, she complained to her immediate supervisor.  The supervisor’s initial response was that she should not take offense, as “that’s just how they treat their women over there.”  He further assured he she was “hot.”  He then told her he would look into the matter and specifically asked her not to go to HR.  The only thing he did was to “observe” the situation for a few days.

After the plaintiff was followed to her car one night, she decided not to return to work and was terminated for job-abandonment.  She then had an exit interview with an HR manager, and she disclosed the harassment.  The manager promised to investigate, but did nothing.  Tyson finally conducted an investigation after the plaintiff filed an EEOC charge.

The investigator did not interview one of the named harassers, a co-worker to whom the plaintiff had complained to at the time of the alleged harassment, or the manager who conducted the exit interview.  The investigator simply sent the witness statements to Tyson’s EEO specialist who, in turn, did nothing except respond to the EEOC charge.

A jury awarded the plaintiff $1.2 million, including punitive damages, and the Sixth Circuit upheld the award.  Tyson’s response to the plaintiff’s internal complaint was “woefully insufficient,” according to the court.  No action was taken to stop the harassment; the investigation was conducted too late and was incomplete, at best, and; no disciplinary measures were ever imposed on the perpetrators.

On appeal, Tyson argued the trial court erred in admitting evidence of the investigation at all, as it was conducted post-termination.  But the Sixth Circuit disagreed, finding the details of the investigation were relevant to show Tyson’s “reckless disregard” of the plaintiff’s Title VII rights, thereby supporting the punitive damages award.

This case is a textbook example of how not to respond to an internal complaint of harassment.  It’s also a good reminder that having an anti-harassment policy is not enough.  Supervisors must be trained on how to deal with harassment situations that arise.

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Recent court case emphasizes the need to conduct harassment training

By on May 3, 2010 in Our Blog

Last month, a federal court in Tennessee held that an employer’s failure to train its workforce on its harassment policy prevented it from utilizing the affirmative defense in a sexual harassment case.  In Bishop v. Woodbury Clinical Laboratory, the plaintiff claimed her supervisor harassed by making unwanted sexual advances and comments.  She conceded she never complained to anyone about the alleged harassment. The employer tried to have the case thrown out on the basis of a widely-used affirmative defense known as the Faragher/Ellerth defense (named after the United States Supreme Court cases that articulated it).  Under the Faragher/Ellerth defense, the employer needed to show (1) it exercised “reasonable care” to prevent/correct any sexual harassment and (2) the plaintiff unreasonably failed to take advantage of its corrective/preventive measures. 

The employer in Bishop had an anti-harassment policy and had disseminated it to all employees, including the plaintiff.  The policy even spelled out what employees should do if they had concerns about harassment.  However, the employer never trained its supervisors and employees on the policy, and therefore could not meet the first prong of the Faragher/Ellerth defense.  The case will now proceed to a jury.  Whatever the ultimate outcome, the employer faces an expensive legal battle.

We’ve said it before, but it bears repeating.  TRAIN your employees on your harassment policy!  (Warren & Hays can help).

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Do employers have a heightened duty to protect teen workers from harassment?

By on January 27, 2010 in Our Blog

In my opinion, and in a word, yes.  Last week, the television news show 20/20 aired a story about the “alarmingly high number of teens [who] claim sexual harassment at work.”  ABC’s Brian Ross interviewed a sixteen year old student from Orange County, California who worked part-time at a local Starbucks as a barista.  According to the young woman, who has since sued the coffee giant, her direct supervisor, a twenty-four year old male, repeatedly harassed her and coerced her into a sexual relationship.  She claims she did not believe she could refuse his advances.  She also claims when she finally complained to Starbucks, she was transferred to another store but the alleged harasser faced no consequences.  Starbucks is fighting the lawsuit, in part by claiming the young woman’s sexual history undermines her claims.  However the case turns out, it is certainly an embarrassment for Starbucks, and an expensive one at that.   

In another recent case, two teenage women sued Taco Bell after their supervisor allegedly raped them.  The EEOC pursued the matter, obtaining a several hundred dollar settlement for the women.  The EEOC’s position in the case was that the employer had a heightened responsibility to protect its youngest workers.

The EEOC has a point, and one that I imagine most judges and juries would be swayed by.  Certain employers hire teenage workers, as they are inexperienced and inexpensive, and employers can make good money off of them.  It only seems fair that the employers should, in turn, take some responsibility for providing their newest members of the workforce with a safe and productive work environment.  Two easy and inexpensive ways to implement this responsibility are (1) making sure discrimination and harassment policies are updated, disseminated, and provide a clear channel for employees to complain, and (2) training teenage workers and, more importantly, those who manage them, on how to create and maintain a healthy work environment and avoid issues of harassment and discrimination.

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Good anti-harassment policy and attempt to respond to complaint? Not necessarily enough, rules the Fourth Circuit.

By on July 30, 2009 in Our Blog

On July 21, 2009, the Fourth Circuit reversed a grant of summary judgment to the employer in EEOC v. Central Wholesalers, Inc.  Central Wholesalers (“Central”) had a well-written and publicized harassment policy, including a multi-layered complaint procedure.  It also attempted to respond to a number of complaints made by La Tonya Medley, an African-American female who alleged sexual and racial harassment.  But, while the trial court was persuaded that Central had taken appropriate steps to end the harassment, the Fourth Circuit disagreed, essentially characterizing Central’s actions as too little too late.

Some specifics:  co-workers consistently referred to women as “b***hes” and used the word “n***r” frequently.  One co-worker had a pornographic screensaver and listened to porn in his cubicle.  Per the company policy, Medley first approached the offenders and asked them to stop.  But, the conduct only increased.  Therefore, also according to policy, she went to her supervisor.  The supervisor did nothing immediately and then spoke to the co-workers.  Again, nothing changed.  In fact, the pornographic screensaver remained for about a week and a half following the supervisor’s discussion.  Even after that, the co-worker’s workspace was replete with Playboy materials.  Upper management eventually held a team meeting to discuss appropriate language in the workplace, though to little effect.  Thereafter, Medley saw a couple of blue-colored mop-head dolls hanging by nooses tied around their necks.  She brought this to the attention of another supervisor, who did not report the incident.  

Shortly thereafter, Medley left work, telling her supervisor she did not feel safe.  She then sent an email to upper management complaining she had been subjected to hostile work environment.  No one responded, but Central did commence an investigation. Following the investigation, one employee was issued a verbal warning and was sent to anger-management training.

In reinstating the sexual and racial harassment claims,the Fourth Circuit held that despite Central’s policy, its efforts to curtail the harassment were ineffectual.  Further, the court stated the attempted responses were not “prompt” enough (e.g., waiting a week and a half to remove the pornographic screensaver).  Thus, it will be up a jury to decide Central’s fate. 

The bottom line for employers: When faced with a harassment complaint or simply knowledge of a potential harassment issue, act promptly (this generally means immediately) and make sure your actions serve to end the harassment!  Check in with the complainant to make sure the issues have been successfully addressed.  Also, it is absolutely critical to train supervisors on how to respond to complaints.

 We conduct interactive training sessions tailored to client needs, so feel free to inquire!

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