From the courtroom: How employers can beat a harassment lawsuit
Employers that take every sexual harassment complaint seriously, investigate the allegations and act fast to stop it usually prevail if an internal complaint turns into a harassment lawsuit. These recent cases demonstrate just that, and what employers should routinely do.
Quick response is a lifesaver in a harassment lawsuit
For about a week, Yessenia endured a co-worker’s blatant sexual comments and harassment. When she complained to HR, the offending co-worker was immediately transferred to another site and the harassment stopped. Yessenia sued. The court dismissed the case, saying the employer wasn’t liable because it acted fast to stop the harassment. (Ramos v. Performance Contracting, SD TX)
The lesson: Remind supervisors to react immediately to harassment complaints, at least by notifying HR. Also note that the court specifically said you don’t have to fire the harasser; in some cases, a transfer is fine as long as the harassment ends.
Nip harassing speech in the bud to protect against hostile work environment liability
Not every sexual comment at work is enough to create a hostile environment. If, for example, the target of harassing speech complains and the employer steps up to stop further comments, there are no grounds for a lawsuit.
Here’s how that played out in a recent case.
Recent case: Melissa was a part-time rural carrier for the U.S. Postal Service. The position was essentially to serve as a substitute. She filled in as needed when a full-time carrier was absent.
At one point, a supervisor allegedly joked with Melissa that her direct supervisor was interested in a sexual relationship. She complained, and never heard another similar joke.
Then she was assigned to a different co-worker to help her on that day’s route. She asked for help because she wasn’t familiar with the mail delivery area. The employee she asked allegedly “went crazy,” saying he was “tired of this s**t.” He then called Melissa a “damn whiner” and asked her, “Who are you f*****g that you don’t have to do no work around here?”
Melissa, in tears, immediately reported the incident to two supervisors. The employee was reprimanded and never made any other vulgar comments.
Melissa sued anyway, alleging a sexually hostile work environment.
The court tossed out the case, reasoning that nothing she had endured was severe or frequent enough to alter her working conditions. (Ivey v. Brennan, 5th Cir., 2019)
Final note: This is another case in which the court lauded quick employer action.
Act immediately to put a stop to harassment
Recent case: Denise worked as a correctional officer at the Bedford Hills Correctional Facility. She began a consensual sexual relationship with Jeffrey, a sergeant at the same prison. During that relationship, she and Jeffrey took intimate photographs and videos of themselves. When another correctional officer told Denise the images were being circulated in the prison, she broke off the relationship.
Then she filed an internal sexual harassment complaint. The prison interviewed co-workers, who said they didn’t know where the images originated, but that several had been circulated via group texts.
A few weeks later, the employer sent Jeffrey a cease-and-desist memo telling him to stop any action that could be interpreted as being harassing or discriminatory. It completed the investigation, suspended Jeffrey without pay and transferred him to a different prison. The investigation report noted that Jeffrey was not a supervisor and had no power to hire, fire, demote or otherwise make employment decisions.
Denise, dissatisfied with both the speed of the investigation and its outcome, sued.
But the court tossed out the case. It noted that this was not a case of supervisor harassment. It also pointed out that the employer investigated her complaints and followed up with Denise to make sure no more harassment was taking place. (Martin v. New York, et al., SD NY, 2019)
Note: Prison officials apparently never found out who sent the images to other employees. Perhaps assuming it must have been Jeffrey, they told him to stop all harassment and then moved him. That was the right approach.