Back in 1998, the U.S. Supreme Court’s landmark decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth established a requirement that employers must prevent, detect and remedy unlawful harassment.
Yet some employers are apparently still clueless about their obligations. Lawsuits continue to clog up the legal system as employees keep filing sexual harassment cases.
Many of those cases revolve around what happens far from corporate headquarters. On factory floors across America, women still endure sexual harassment. Calendars with pictures of scantily clad women still hang in break rooms.
Employers may have created sexual harassment policies that look good on paper. Those policies are meaningless if the company doesn’t enforce them.
Recent case: Kimberly Hoyle worked for Freightliner as a tractor-trailer assembler. Women make up less than 10% of the company’s workforce. Freightliner adopted a robust anti-harassment policy years ago, prohibiting sexual harassment and retaliation and providing several ways for employees to lodge complaints.
Freightliner also has IT and Internet policies that prohibit inappropriate use of its computer systems.
Despite all that, Hoyle claimed she was subjected to a sexually hostile work environment and that she was eventually fired in retaliation for complaining.
She said that on one occasion, someone hung a tampon on the key ring for a truck she was supposed to work on. She complained, but her supervisor told her that if she made a fuss, it would just encourage the prankster.
Hoyle then complained that company-issued toolboxes often were adorned with photos of nude women. Her supervisor didn’t pass her complaint to the HR office. But Hoyle’s co-workers complained bitterly that she had no right to tell them what they could have on their toolboxes.
The situation escalated, as calendars featuring women in sexy poses appeared. Then someone began selling pornographic DVDs in the workplace and allowed employees to preview them before purchase. Finally, when Doyle logged into the computer system at the start of a shift, she discovered that the screensaver had been changed to a photo of a nude woman.
None of her complaints to HR resulted in any changes.
Finally, after being transferred to janitorial tasks and then fired for missing work, Doyle sued. Freightliner claimed nothing she endured amounted to sexual harassment.
The 4th Circuit Court of Appeals allowed her lawsuit to continue. It said a jury might view the incidents as demeaning toward women, and her transfer and subsequent discharge as retaliation for complaining. It said having a policy wasn’t enough if HR simply ignored complaints. (Hoyle v. Freightliner, No. 09-2024, 4th Cir., 2011)
Final note: Determining if an environment is sexually hostile depends on both the affected employee’s subjective assessment and an objective, reasonable-employee standard. In this case, Doyle was personally offended by the pranks, calendars and photos that appeared in the workplace. Equally important, the court concluded a reasonable employee might also see the environment as hostile.
HR representatives faced with a complaint should put themselves in the shoes of the hypothetical reasonable employee and decide if the complaint reflects a hostile environment.
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