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How to win sexual harassment lawsuits: Institute robust anti-harassment training policy

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in Discrimination and Harassment,Employment Law,Human Resources

The Supreme Court long ago ruled on the many steps employers can take to avoid liability for sexual harassment.

Key parts of a preventive strategy include training employees and managers on what constitutes harassment, how to report it and how to investigate when harassment allegations surface.

But some employers still fail to cover sexual harassment in their ongoing training programs.

If that sounds like your organization, resolve now to increase your education efforts. As this case shows, it’s well worth the effort.

Recent case: Chastity Shields and several other women worked as customer service representatives at a Cincinnati FedEx call center. James Klingenberg supervised all the women.

FedEx has a comprehensive sexual harassment policy that’s spelled out in each employee’s handbook; it’s also available online through the company’s internal web site. The policy encourages employees to report suspected harassment through both formal and informal complaints. It requires supervisors to report incidents of sexual harassment, allows employees to bypass a harassing supervisor to report a problem and requires sexual harassment training for all employees.

FedEx intercepted text messages from Klingenberg to Shields that seemed to show the two were having a consensual sexual relationship. In response, it suspended Klingenberg for three days for inappropriate use of the company computer system.

A few months later, Shields was transferred to another department. Her new supervisor observed Klingenberg in the act of pursuing Shields and essentially ran him out of the department. Then the new boss reported the incident to HR.

An investigation began and soon the other women’s complaints came to light. At that point, FedEx terminated Klingenberg.

All the women sued, alleging they had endured sexual harassment over the course of many months.

But since none of the victims had been fired, demoted or otherwise punished for resisting their supervisor’s advances, the court concluded FedEx was entitled to argue that the women should have reported the conduct earlier. In fact, several of the women had even taken an online training session on sexual harassment and knew exactly what to do if they were harassed. Because they hadn’t followed the policy, the court decided, they never gave FedEx a chance to fix the problem.

The women countered by arguing that they were too afraid of retaliation to report their supervisor’s conduct.

The court tossed out their case anyway. It said subjective fear of confrontation, unpleasantness or retaliation is no excuse for staying silent. In effect, the court ruled, the women had an obligation to speak up if they felt harassed, since each one knew exactly what to do. The court decided the plaintiffs had simply chosen to ignore the harassment instead, and couldn’t turn around and sue later just because it felt safe to do so once FedEx inquired about the harassment. (Shields, et al., v. FedEx Customer Information Services, No. 1:09-CV-309, SD OH, 2010)

Final note: The women also argued that FedEx should have investigated further after discovering the text messages. But the court said there was nothing inherently wrong with viewing the messages as a simple breach of the company’s communication policy rather than harassment.

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