It takes more than a written policy to avoid liability for sexual harassment. Employees frequently ignore policies—and quickly forget them. They get the impressionjust wrote the policy and then left it on the shelf to gather dust.
But if you back up your policy with regular training and reminders and quickly fix any harassment problems that come to your attention, chances are you won’t be liable unless the harasser was a supervisor and the employee suffered an adverse employment action, such as being fired or demoted.
Recent case: Jane Caldwell went to work for the federal government’s Environmental Protection Agency (EPA) as an environmental scientist in the Office of Air Quality Planning and Standards. There, she quickly discovered what she considered sexism and sexual harassment. For example, suggestive notes sometimes would appear on her office chair while she was away. Other times, a male colleague would sit in her office, wearing bright yellow short shorts that gave her a view she would rather not have had to take in.
Caldwell and several other women also began to notice what they later said was a rampant anti-women bias. They complained that women who spoke up were called “bitches” and said male supervisors told them they should be quiet during meetings. The women said they frequently were cut off during department meetings. Caldwell said her boss told her that asking too many questions was bad for her career. She also said he told her that no matter what her qualifications, she would never be promoted.
Following the agency’s sexual harassment and discrimination policy, Caldwell and the other women went to the internal equal employment opportunity officer with their complaints. Within a few weeks, the supervisor was reassigned. A woman replaced him.
Over the next few months, others higher up in the supervisory chain were also reassigned, so no one who might have been part of any possible anti-female old boys’ network had supervisory power over the women. The agency also started an intensive series of sexual harassment training sessions, complete with harassment examples. It also sent all employees e-mails detailing specific examples of illegal harassment.
But Caldwell’s troubles didn’t end altogether. Some of her male co-workers seemed intent on irritating her by stopping by her office and trying to discuss “scientific papers” on various sexual topics. She sued, alleging a hostile work environment and sexual harassment.
The court dismissed the claim. It reasoned the EPA did all it could with what it knew. As soon as it investigated the complaints Caldwell and the other women made, it tried to fix the problem by moving the alleged perpetrators. It also held meetings and sent e-mails clarifying and reiterating the sexual harassment policy. The fact that some co-workers still tried to needle Caldwell wasn’t enough to make the EPA liable. (Caldwell v. Johnson, No. 05-1706, 4th Cir., 2008)
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