Having an effective system that employees can use to report sexual harassment—and backing it with a clear policy—can help insulate you from sexual harassment lawsuits. The Supreme Court said so in 1998, in its landmark Faragher v. Boca Raton and Burlington Industries v. Ellerth decisions.
The idea is that if you provide a way for harassed employees to bypass their bosses to complain and they don’t use it, then they can’t later claim you didn’t do anything to stop the harassment.
A recent case shows that the broader your anti-harassment policy, the more protection you gain. Tell employees to report all harassment, not just the sexual kind. Include harassment based on religion, disability, national origin and so on.
Recent case: Ferenc worked as a welder for a shipbuilder. He walks with a limp and is of Hungarian national origin. He once reported that co-workers sometimes pranked him, smearing grease on his lunch box and water bottle and damaging his microwave and coffee maker. His supervisors called a staff meeting to warn everyone to behave themselves.
When Ferenc refused to report to a new work site, he was fired. That’s when he sued, alleging that he had been forced to endure years of harassment based on his disability and his national origin. His lawsuit alleged someone had told him that he would never be promoted on account of his disability and nationality. He claimed co-workers mocked him for limping.
However, it turned out he had never used the employer’s harassment reporting process to alert anyone to those incidents.
The court tossed out his case. It said the company wasn’t liable because it had a reporting system and it had proved it took similar complaints seriously. Ferenc knew how to report any kind of harassment or discrimination because he had done it before. When he did, his problems were addressed quickly. He had no excuse not to report the new harassment. (Fodor v. Eastern Shipbuilding, No. 14-11713, 11th Cir., 2015)
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