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Almost two decades have passed since the twin U.S. Supreme Court decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton led HR professionals to roll out detailed policies in an effort to limit employer liability for sexual harassment. Is having such a policy an effective shield against such exposure? According to a recent decision from the 5th U.S. Circuit Court of Appeals, the answer is: not necessarily.
Kandice Pullen began work in 2011 as a clerical employee for the Caddo Parish School Board in Louisiana. At times during her employment, she alleges, she was the victim of varying forms of verbal and physical harassment by her supervisor. However, she never made any complaints of the harassment to the school board. Rather, in February 2013, another clerical employee made a sexual harassment complaint involving the same supervisor and identified Pullen as a person who was potentially subject to similar conduct. The school board's internal investigation, including an interview with Pullen, led her to file an Equal Employment Opportunity Commission discrimination charge and, ultimately, a lawsuit alleging unlawful harassment in violation of Title VII of the Civil Rights Act of 1964.
On a motion for summary judgment, the lower court ruled in favor of the school board. It noted that the Ellerth/Faragher defense, named after the 1998 U.S. Supreme Court decisions, "allows an employer to claim immunity from vicarious liability for a supervisor's sexual harassment if it establishes '(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.' "
The lower court concluded that the school board had maintained a detailed sexual harassment policy and posted it on bulletin boards and online. Further, the employer provided sexual harassment training to the majority of its employees on a regular basis. On these facts, the lower court held that there was no genuine dispute that the school board had exercised reasonable care. Taken together with the fact that Pullen waited over two years to report the harassment, the lower court dismissed the claim.
The appeals court reversed and sent the case back to the lower court. The appeals court noted that a purported victim's awareness of a sexual harassment policy is relevant to whether an employer exercised "reasonable care" to prevent harassment. Pullen produced witnesses willing to testify that, among the clerical staff, employees had not received harassment training, were neither informed of the policy nor shown where to find it, and were not told who to contact regarding complaints of sexual harassment. While the school board offered evidence to the contrary, the appeals court concluded that disputes existed over whether the policy had been sufficiently distributed and explained to allow the conclusion that the school board had exercised reasonable care. The appeals court concluded that summary judgment could not be granted.
Pullen v. Caddo Parish School Board, 5th Cir., No. 15-30871 (July 20, 2016).
Professional Pointer: Policies that exist only in a binder are of only marginal value. To be legally and operationally effective, employer policies should be well-communicated and explained to new and existing employees.
Scott M. Wich is an attorney with Clifton Budd & DeMaria LLP in New York City.
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