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Do Courts Expect You to Use Surveillance Cameras in Severe Harassment Cases?

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in Case In Point

case in pointWith employees protected by so many federal and state privacy laws these days, organizations are justifiably concerned about installing surveillance cameras in the workplace to identify employee misbehavior. A new court ruling last week addressed this tension between modern-day technology, privacy rights and your duty to expose the truth …

Case in Point: Otto May, a pipefitter at an Illinois Chrysler plant, received nasty death threats based on his race and religion. Notes with messages such as “Death to the Jews,” “Time is short” and “We will get you” appeared in his toolbox. He was subjected to derogatory graffiti, including “Otto Cuban Jew die.” Much of the hate writings included a swastika and “Heil Hitler” references.

In an effort to stop the harassment, the company’s HR chief and the head of union relations held two short meetings with about 60 plant employees to review its anti-harassment policy. The company also had an “open door” policy for employees to file complaints. Still, May was exposed to more than 70 incidents over the next three years.

May gave the company a list of 19 co-workers that might have been the perpetrators. None were interviewed, and nothing changed. He suggested the company install a surveillance camera to catch the note- and graffiti-writers. The company said installing the cameras would be too complicated. The company did use swipe-card data to try to see who was in the plant when the harassment occurred.

Eventually, May sued the company, saying it tolerated a hostile work environment under Title VII of the Civil Rights Act of 1964. A jury awarded him $709,000 in compensatory damages and $3.5 million in punitive damages.

Chrysler appealed, arguing that it made a good faith effort to stop the harassment, that the award was “grossly excessive” and, in fact, it may have been May himself who wrote the notes and drew the graffiti.

The appeals court upheld the $3.5 million verdict, saying, “At some point, such an employer response sinks from negligent to reckless.” It noted the harassment lasted for more than three years and involved 70 instances. The company’s response, the court said, was “shockingly thin” as measured against the severity of the harassment.

Regarding May’s request to install a surveillance camera to identify the harassers, the court seemed to favor the idea, saying installing a single camera focused on May’s toolbox would have been an “important step.” (May v. Chrysler Grp. LLC, 7th Cir., 8/23/12)

3 Lessons Learned … Without Going to Court

1. Meetings and open door policies are not enough. While having an open-door policy and holding policy review meetings is a good start, a company must also conduct a prompt and thorough investigation to stop misconduct.

2. Launch investigations ASAP. The court noted that the company did nothing for two weeks after first learning about the death threats toward May. The greater the threat, the faster the response needs to be. As a rule of thumb, it is a best practice to start an investigation within 24 hours of receiving a harassment complaint. If there’s an “immediate” threat, this requires a more immediate response.

3. Safety trumps privacy. The court recognized that the technology of surveillance cameras exists. There now seems to be a clear expectation by judges and juries that companies should install surveillance cameras when it comes to safety issues in the workplace. That being said, companies will always benefit from having a technology policy that clearly states “employees shall have no reasonable expectation of privacy in the workplace with regards to the premises, computers and all other company owned property.” In this case, the court noted, a camera needed to be installed in May’s work area to put a real end to the harassment. Too bad the employer pushed back, saying it was “too complicated.” A federal employment lawsuit is even more complicated!

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