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How to reduce liability for harassment: Do the right thing

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources

In a case that has simple yet profound lessons for employers, the 7th Circuit Court of Appeals has ruled that an employer wasn’t liable for co-worker harassment—all because the company acted fast and effectively when it discovered the harassment.

It investigated the allegations, made sure the harassed employee had many chances to complain and repeatedly reinforced its anti-harassment policy.

Noose in the workplace

Tremeyne Porter was placed by Burton Placement Services as a temporary employee at Erie Foods International Inc.’s Rochelle, Ill., food production facility. Porter was the sole black employee working the third shift. One evening, a co-worker led Porter to a production area, where a noose made out of white rope was hanging on a piece of machinery. Another co-worker was standing under the noose, allegedly smiling.

Later that night, Porter’s supervisor discovered the noose and took it into her office. Then she continued her rounds. That’s when Porter told the supervisor he believed the noose was directed at him. The supervisor then spoke with the shift supervisor, informed her own direct supervisor, and also told HR.

An hour or so later, the supervisor met with HR, which prompted a 15-minute meeting with the third-shift employees, including Porter. The topic of the meeting: employee harassment and Erie Foods’ refusal to tolerate it. HR also addressed the company’s anti-discrimination policy. Porter did not speak during this meeting.

Refusing to name names

Later, HR met with Porter and asked him if he knew who was responsible for the noose. Porter refused to name anyone because he did not want anyone to be fired. The HR representative handed Porter his business card and told him to call if there were any more problems.

Before long, another co-worker showed Porter and some other employees a noose he had made and later gave Porter a noose in the locker room. The co-worker threatened Porter not to report the incident.

A couple of days later, Porter again met with the HR representative, who asked whether he was prepared to tell who was responsible for the latest noose incident.

Porter again refused to implicate any individuals, but did say a co-worker had threatened him. Asked repeatedly if he wanted to report who was harassing him, Porter continued to refuse to cooperate.

Intimidation … and a lawsuit

Around that time, Porter was subjected to several other incidents. First, Porter claimed co-workers told him they wished he would die. Then someone pushed over his locker as he was trying to change clothing. Porter reported the incidents. The next day, the company bolted the lockers down so they couldn’t be moved. Because Porter didn’t identify any of the responsible co-workers, Erie Foods took no further action.

Within a few days, Porter quit. He reported the incidents to Burton Placement Services, which later faxed his report to Erie Foods.

Eventually, Porter sued Erie Foods for race-based harassment, constructive discharge and retaliation in violation of Title VII of the Civil Rights Act of 1964.

Not negligent, not liable

The 7th Circuit cleared Erie Foods of wrongdoing. It held that the company’s supervisors responded promptly and effectively to Porter’s complaints. They immediately investigated the incidents, met with Porter and his co-workers to make clear the company’s disapproval of such harassment and reinforce its strong anti-discrimination policy. They attempted to find out who was responsible for the incidents, and reported the incidents to their superiors and HR.

The 7th Circuit highlighted Porter’s failure to participate in Erie Foods’ investigation and said his subjective fears did not excuse this failure. It noted that Porter had many chances to identify his harassers, and yet refused to do so. Porter also failed to report additional incidents of harassment.

Accordingly, the court held that the company was not negligent in investigating or responding to the harassment of which it had knowledge and, thus, was not liable for the racial harassment Porter experienced.

Lesson learned

Employers can escape liability under Title VII if they comply with well-crafted anti-discrimination policies and immediately investigate and effectively respond to their employees’ reports of harassment, even in cases of egregious co-worker harassment.

The 7th Circuit was particularly influenced by the supervisors’ and HR’s repeated meetings with the complaining employee, as well as their efforts to communicate with co-workers.

Another key factor was the promptness and immediacy of the supervisors’ investigation and response. Employers should adhere to their anti-discrimination policies, conduct prompt investigations and, most important, maintain open lines of communication with the complaining employee and his or her co-workers.

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