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Employers that ignore or fail to investigate sexual harassment will pay for it

September 5th, 2013  |  Lorene Park

By Lorene D. Park, J.D.

In the past two months, courts have rendered decisions involving truly jaw-dropping sexual harassment claims. In fact, just yesterday I read a case where a TSA employee who reported sexual harassment (including two assaults on airport property) was allegedly coerced into signing a pre-written statement indicating the relationship was consensual (Marugame v Napolitano). Other cases have included supervisors who call female subordinates “work wife,” “slave,” and other inappropriate pet names; who detail their sexual prowess and offer their services; and worse.

As deplorable as some of this conduct is, it is even more troubling when employers fail to respond to complaints, conduct only a minimal investigation, or even retaliate against the person complaining. Interestingly, most, if not all of the employers in these cases have sexual harassment policies in place. The cases thus make it obvious that merely having a policy is not enough — it has to be reasonable and properly enforced, and there must also be an effective internal procedure for grievances that allow employees to bypass supervisors when necessary. Here are some recent examples of how not to respond to a sexual harassment complaint:

Ignoring complaints. A female dispatcher who described her alleged harasser as a “peeping tom” and “a persistent pest” who refused to take “no” for an answer, texted her repeatedly, wore short shorts with no underwear, recited love poems, and showed up to her chemotherapy appointment uninvited, survived summary judgment on her hostile work environment and constructive discharge claims (Hollis v Town of Mount Vernon). Her repeated complaints to both the acting police chief and the chief who was on leave resulted in no relief. The acting chief told her the mayor would not fire the male dispatcher and the only thing she could do was take it to the town council. When she started to stand during that night’s council meeting, the acting chief pulled her down and told her that they’d handle it in the morning. They didn’t. He was eventually fired for a different reason, but by then the employee had already resigned.

Appointing harasser’s BFF to investigate. In Miles v Davita Rx, LLC, Inc, an administrative assistant at a dialysis clinic complained (to the wrong person apparently) about her supervisor’s repeated sexual comments and conduct. Among other things, he called her his “work wife” and his “slave,” rubbed her shoulders as she worked, and positioned himself so she backed into his crotch when she moved boxes. He also made sure to point out to his female staff that he could fire them at any time. Fed up, the employee quit. She also wrote a note to higher-level executives detailing the harassment and they responded by putting the alleged harasser’s “dear friend,” an HR manager, in charge of an investigation. That investigation consisted entirely of an interview with the alleged harasser, who denied everything. The employer’s motion for summary judgment on the employee’s sexual harassment claim was denied.

The slap on the wrist. In another case, a legal secretary who the law firm knew had survived a violent rape in the past was repeatedly sent sexual emails by one of the attorneys for whom she worked, notwithstanding her repeated objections (Elster v Fishman). One was an email, which was jokingly set up to appear to be from a client, inquiring about the size of the attorney’s penis. Another included a picture of a naked woman who he proclaimed was his new trainer. After the employee complained to an office manager, a partner informed her that she would no longer be on the distribution lists. However, the same attorney who sent the prior emails sent another with a picture of a naked woman wearing only a Santa hat, and a message stating “Says she knows you!” The employee complained again and the attorney was made to apologize (insincerely, she believed). Soon, a printed email was given to the secretary that referred to an interlude between the attorney and his wife. On these facts, a California appellate court found the trial court erred in sustaining the defendants’ demurrer to her sexual harassment and intentional infliction of emotional distress claims.

Pleading “he said, she said.” In Arabalo v City of Denver, a corrections officer complained that she had been drugged and raped by two deputies. Her immediate supervisor’s response was to say it was a “he said, she said” situation and should be kept under wraps. Meanwhile, another supervisor often asked the employee what she was wearing, requested she lift her shirt, and suggested she sit on his lap for a “big surprise.” In addition, when the employee complained of sexual harassment by inmates and requested a transfer, she was told that it was her job to endure it. Although she was later fired for what the court found were legitimate reasons (mishandling funds; falsification of documents) and most of her claims failed, her hostile work environment claim against the employer survived a motion to dismiss.

Laughing at the situation. Based on evidence that a manager called an employee a “dumb f*cking c*nt” each day he saw her; displayed images of nude women, repeatedly said women do not belong in the oil field; told the employee not to waste her time applying for a job because she had “tits” and “bros before hoes;” and got angry that she would not have sex with a customer’s employee, a court rejected an employer’s argument that the alleged harassment was not sufficiently severe and pervasive to support a hostile work environment claim (Crooks v National Oilwell Varco, LP). Moreover, the employer could not defend its inadequate response to the employee’s repeated complaints — a regional manager laughed and told her it was a “joke.”

Retaliating against the victim. Another gem of a supervisor (de facto supervisor in this case) told a parks and recreation employee that he “owned” her (Lindquist v Tanner). He also hugged her, kissed her, called her at home, and frequently urinated in her presence. After she complained to the parks commission, not only did the harassment continue, but her hours were reduced and discussions of possible future full-time work ceased. Her job was eliminated but the commission retained two other part-time workers who did not complain. The court denied the employer’s motion for summary judgment on her hostile work environment claim and her retaliation claim.

Best practices

Employers must do a better job of responding to sexual harassment complaints than the employers in the above examples. To begin with, have an effective anti-harassment policy and enforce it. At a minimum, a policy should state:

  • that the company will not tolerate sexual harassment in the workplace; define “sexual harassment” clearly and succinctly; provide examples (e.g., touching, suggestive jokes or comments, flirtatious gifts, obscene gestures, blocking free movement, leering, graphic photos or cartoons, questions about personal life);
  • that managers at all levels are responsible for preventing harassment and must immediately report complaints or conduct by anyone (coworker, supervisor, or nonemployee) that may be harassment, even if it looked welcomed;
  • a procedure outlining multiple ways for employees to report harassment, e.g., a manager, a human resources rep, or a tip line;
  • that all reports will be investigated;
  • that there will be no retaliation for reports of harassment.

Merely having a policy is not enough, though — it must be enforced. Treat all complaints seriously and fully investigate, using an impartial investigator. Also, take intermediate measures during the investigation to protect the employee who complained. At the conclusion of the investigation, take appropriate disciplinary measures if called for. Check in again afterwards to make sure that the measures you took were effective and that any and all harassment has actually stopped.

An effective anti-sexual harassment policy, well enforced, does not just benefit employees; it also gives an employer the chance to defend a sexual harassment suit with the Ellerth/Faragher affirmative defense (for laypersons, this involves avoiding liability by showing the employer exercised reasonable care to eliminate harassment and showing the employee unreasonably failed to take advantage of preventative or corrective opportunities). Even if the Ellerth/Faragher defense turns out to be unavailable, the responsive and corrective measures taken by an employer to end harassment can go a long way to limiting subsequent liability.

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