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Harassment? Don’t hide behind handbook

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in Discrimination and Harassment,Human Resources

Here’s something to remember when planning sexual harassment training sessions for management: Be sure everyone understands that they must report any sexual harassment complaints employees make—even if the employees don’t follow the procedures for reporting harassment that are laid out in your employee handbook.

The fact is, when an employer learns about harassment from any source, it must investigate and act. Ignoring the problem just because an employee was afraid to formally report sexual harassment won’t work.

Recent case: Suann sold pet pharmaceuticals and had to regularly interact with warehouse employees. Starting in 2008, she began complaining to managers and HR about one employee in particular, who she said threatened to grope her. He was eventually fired for harassment, but his departure didn’t improve Suann’s work environment. She claimed warehouse managers kept hassling her over the man’s firing.

Suann sued, alleging she had endured three years of sexual harassment by the warehouse employee. For example, she alleged that he made crude sexual references and propositioned her for sexual favors. She said he also asked her to sit in his lap, step behind closed doors for a “private meeting” and suggested having sex in the parking lot.

The employer argued that Suann had never followed the company’s official policy on how to report harassment, but had always informally approached supervisors until she finally contacted HR. Therefore, it reasoned, it wasn’t responsible for the harassment since it couldn’t fix what it didn’t know about.

But during pretrial discovery, it came out that several years earlier, the company had conducted a sexual harassment survey. In it, several women complained about the same warehouse employee’s behavior.

In light of that information, the court sided with Suann. Since the employer clearly should have known there was a problem at the warehouse after it conducted the survey, it could not use the lack of a formal complaint as a shield against liability. Even if Suann had not followed the sexual harassment policy to the letter, the employer already knew or should have known about the harassment. Therefore, it was obligated to fix the problem. (Clopton, et al., v. Animal Health International, No. A-13-CV-205, WD TX, 2014)

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