Employers can fairly easily limit their liability in sexual harassment cases. Rigorously enforcing a solid harassment policy does the trick.
But supervisor harassment is another matter. When a supervisor allegedly harasses a subordinate, the employer is liable unless it can show that some “tangible employment action” by the supervisor didn’t adversely affect the victim.
To escape liability, the employer must show that upper-levelused a legitimate, independent process in deciding to discipline the employee, and that the decision wasn’t left solely to the allegedly harassing supervisor. To make a persuasive argument in court, the employer must retain the right to conduct a proper investigation. And it must not simply take the supervisor’s word on what happened.
Recent case: Debra Simpkins worked as a patrol officer in East St. Louis when she started a consensual romantic relationship with her immediate supervisor. The department then transferred the supervisor so the two were not in the same chain of command.
Simpkins’ new supervisor—a woman—told her she needed permission to go to the floor where her paramour worked. Later, the new supervisor allegedly made sexual gestures at Simpkins. Simpkins complained about it, suggesting that the gestures were sexual overtures. At about the same time, Simpkins received a reprimand for disobeying the edict to avoid her lover’s floor. She was sent home for “insubordination” and stayed there for more than a month. That disciplinary decision followed an investigation and came with input from the union and several senior officers in the department.
Subsequently, Simpkins claimed that she had been harassed. The department ordered Simpkins to back up her written complaint with a recorded statement. She refused and the police department, concluding her complaint was unfounded, again disciplined her for insubordination.
Simpkins sued, alleging sexual harassment and retaliation. But because the supervisor hadn’t independently made the decision to discipline Simpkins, the court ruled she had suffered no adverse employment action. The court tossed out her case. (Simpkins v. Police Department of the City of East St. Louis, No. 05-CV-0082, 7th Cir., 2007)
Final note: Despite the supervisor’s questionable behavior, the department prevailed because it had an independent process for deciding on discipline.