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Vague or nonexistent harassment policy? In same-sex cases, prepare to pay

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in Discrimination and Harassment,Human Resources

Judges don’t have much patience with employers that don’t understand their obligations to prevent or stop sexual harassment, including same-sex harassment.

Recent case: Kerry is an ironworker who worked with other men on various bridge building projects. His supervisor apparently thought Kerry was effeminate and treated him to daily doses of abuse. He routinely referred to Kerry as “fa***t” and “princess” and often approached him from behind, moving his hips back and forth in a sexual way. Other times, he unzipped his pants in front of Kerry and pretended he was about to expose his penis. On one occasion, he told Kerry, who had been napping in his car, that if the window had been open, he could have put his penis in Kerry’s mouth.

Kerry finally complained to another manager—and was promptly suspended for three days, supposedly in order to separate the two and avoid more trouble. The manager did not document any aspect of his investigation and spent just 20 minutes speaking with everyone before concluding that what Kerry described was unprofessional … but not sexual harassment.

Kerry returned to work, but then he sued, alleging he had been forced to work in a sexually hostile environment.

A jury agreed, awarding him $451,000. The company appealed, arguing that the alleged harassment wasn’t really sexual harassment. Plus, it said the fact that it had an anti-harassment policy in place should have protected it from liability.

The 5th Circuit Court of Appeals upheld most of the verdict. It reasoned that while the company had a general anti-discrimination policy, that wasn’t enough. Nothing in the policy actually explained what sexual harassment was or how employees could file harassment complaints.

Plus, it was clear that managers and supervisors never received any substantial training on sexual har­­ass­­ment, its prevention or how to investigate complaints. That simply wasn’t good enough to avoid liability. (EEOC v. Boh Brothers, No. 11-30700, 5th Cir., 2013)

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