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Seek ways to show worker didn’t feel harassed

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in Discrimination and Harassment,Human Resources

Employees have to prove two things when they allege they had to work in a sexually hostile environment. They have to persuade the court that, objectively, the environment was toxic. They also have to show that subjectively they felt harassed.

Smart employers can attack the second claim even if it appears obvious to the “reasonable,” hypothetical employee that things weren’t right.

In one recent case, the employer used hotline call logs and captured video feeds from its security system to show the employee didn’t feel harassed.

Recent case: Grace Guthrie, who is white, was a waitress at a Waffle House restaurant. One of her co-workers was black. Guthrie claimed that over almost a year, the co-worker asked her out, recounted his sexual exploits and told her and others that once they “went black” they would never “go back.”

Waffle House has a 24-hour emp­loyee hotline that’s always staffed with a live person. Guthrie knew she could call the hotline to report any problems, including sexual harassment.

Yet she didn’t call until 11 months after the alleged harassment began. Then she sued.

Waffle House had saved security-camera video, which showed images of Guthrie hugging her alleged harasser and acting happy, friendly and otherwise not looking at all distressed.

The video record, plus her late call to the hotline, convinced the court that Guthrie didn’t feel sexually harassed. It dismissed her case. (Guthrie v. Waffle House, et al., No. 10-15090, 11th Cir., 2012)

Final note: When you receive a harassment complaint, one of the first things you should do as you conduct the investigation is to preserve any video evidence that may exist. Time is of the essence, since security tape systems often write over earlier recordings.

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