Sound Policies and Practices Defeat Harassment Claim

By Scott M. Wich September 3, 2019
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​Despite well-drafted harassment policies that are implemented diligently, an employer is sometimes faced with an employee who harasses others. Is an employer liable for the harassment in such situations? Not necessarily, according to a recent decision of the 7th U.S. Circuit Court of Appeals.A day-shift store supervisor twice received written counseling related to allegations that he sexually harassed a worker he supervised. Following the second discipline, the supervisor was moved to the night shift. On that shift, he met the plaintiff in May 2013. Over the next several months, the supervisor allegedly commented about the plaintiff's body, asked to see her naked and suggested that they shower together. In September 2013, after refusing one of the supervisor's alleged advances, the plaintiff was issued a written coaching for not working scheduled shifts. In turn, the plaintiff made a harassment complaint to her store manager.The store manager began an immediate investigation, which included an interview with the supervisor. The supervisor denied the allegations. The store manager concluded his investigation by finding the plaintiff's claims to be unsubstantiated, as there were no corroborating witnesses. Nevertheless, the supervisor was required to retake the company's ethics and anti-harassment training. The plaintiff reported no further instances of harassment by the supervisor.The plaintiff subsequently filed a lawsuit asserting that she was unlawfully subjected to daily sexual harassment for several months in 2013. The store responded by raising the Faragher-Ellerth affirmative defense. Under that defense, an employer can avoid liability for sexual harassment under Title VII of the Civil Rights Act of 1964 if no adverse employment action was taken against an employee, the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and the employee unreasonably failed to take advantage of corrective or preventive opportunities provided by the employer or otherwise avoid the harm. The trial court dismissed the case on summary judgment, finding the affirmative defense to have been established.[SHRM members-only HR Q&A: What are the different types of sexual harassment?]In affirming the dismissal, the appeals court noted that the plaintiff could not establish that she suffered any adverse employment action related to the alleged harassment. The appeals court expressed some doubt over whether the store took reasonable care to prevent the harassment, as the supervisor had an alleged history of harassing behavior. By placing the supervisor in a night-shift supervisory role, it made him the highest-ranking employee who had opportunities to be alone with subordinates. At a minimum, the store arguably ought to have checked on the supervisor's behavior during that shift. However, because the plaintiff had failed to properly raise this argument on appeal, the court did not rule on this point.Rather, the appeals court focused on the fact that the store had a clear policy addressing harassment, including a reporting mechanism, and it promptly investigated, required remedial training, and was able to show that its actions were effective, as there were no further complaints of harassment. The appeals court further held that the plaintiff's delay in reporting the alleged conduct, despite her possible fear of retaliation for reporting, was unreasonable given the available reporting mechanisms and anti-retaliation policy.Hunt v. Wal-Mart Stores Inc., 7th Cir., No. 18-3403 (July 26, 2019).Professional Pointer: While well-drafted and implemented anti-harassment policies are vital to preventing harassment, employers should not rely on them exclusively for avoiding legal liability. State and local laws may provide greater employee protections. Relying only on the federal law, such as the Faragher-Ellerth affirmative defense, as a compliance method may result in unanticipated liability risks.Scott M. Wich is an attorney with Clifton Budd & DeMaria LLP in New York City. 
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