Having a written anti-harassment policy and clear reporting procedure can help you defend a harassment claim. But those aren’t silver bullets. As a new ruling says, your efforts must “be effective to prevent harassment.” In the following case, a manager’s failure to pass along complaints about the actions of a repeat offender were clearly not “effective” …
Case in Point: Administrative assistant Latresa Peoples says a male co-worker was constantly making comments about her body, touching her inappropriately and asking for sexual favors. He told Peoples he’d like to see her breasts and would pay her $200 to do so.
Peoples complained to her immediate supervisor. But the supervisor was not one of the “go to” people listed in the reporting procedure in the company’s anti-harassment policy. The supervisor never mentioned the complaint to anyone higher up the food chain. (The company did have prior knowledge of the employee’s inappropriate conduct with other workers.)
Eventually, the company found out about the situation. It investigated and fired the harasser.
Months later, Peoples was fired for violating the company’s timecard policy. She sued the company, claiming it failed to take reasonable care to prevent her from being sexually harassed. She also claimed her firing was retaliation for bringing the harassment complaint.
The company denied the claims. It cited the so-called Faragher-Ellerth defense, saying the company shouldn’t be held liable because it had a sound anti-harassment policy, distributed it company wide and acted promptly once it learned of the situation. Plus, Peoples didn’t report the harassment through the correct channels.
What happened next?
The court gave People a green light to proceed to a jury trial, saying the company failed to prove its anti-harassment efforts were “both reasonably designed and reasonably effective.”
A company’s distribution of an anti-harassment policy shows “reasonable care” in preventing harassment unless the plaintiff can show that “the employer administered the policy in bad faith or that the policy was otherwise defective or dysfunctional.”
The court said the company’s prior knowledge of the harasser’s inappropriate conduct and the fact that Peoples’ supervisor never told higher-ups about the reported harassment (even though he wasn’t a named complaint receiver) may be enough evidence for the jury to consider that the policy was not effective to prevent harassment. (Peoples v. Marjack Co., D. Md., 3/5/10)
3 Lessons Learned Without Going to Court…
1. Train. All managers and supervisors should be trained to immediately notify HR and the appropriate higher-ups about harassment complaints. If employee theft had occurred, the manager would be required to report it. This is no different. Both are policy violations, regardless of the reporting procedure.
2. Include. To be “reasonable” your policy should be inclusive of managers and supervisors in the reporting procedures, as those are the people employees have daily contact with. Don’t try and outsmart the legal system by skipping them. This case shows why that strategy will fail you.
3. Observe. Watch for repeat offenders. This case is a big deal because the court said if you have a repeat offender in your midst it may just be evidence used against you to prove your company’s policy is not effective to prevent harassment.
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