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Avoid Harassment Headaches

​Curbing harassment is of the utmost importance to employers because harassment can be costly and damaging in a variety of ways. Harassment hurts employee morale and productivity, and harassment allegations can result in embarrassment, liability for the company, and liability for the individual involved. Responding to government charges and lawsuits takes time, and the inherent cost of putting together a defense is coupled with whatever penalties or payments might be required if the company is found in violation of regulations or laws. As such, employers need to understand their legal responsibilities to prevent and appropriately remedy harassing behavior. With regard to sexual harassment, the most common type of claim, recent case law offers important lessons about how effective workplace policies can help to reduce the risk of harassment lawsuits.

Basic Premises
It helps to first understand the terms and general underlying legal principles. Harassment is one type of unlawful discrimination. It comes in many forms, including harassment based on sex or gender, race, color, religion, national origin, and disability. Although sexual harassment claims are the most common, all forms of harassment on these bases are illegal.

It is critical to understand the general principles companies must follow when devising and implementing a harassment prevention program. With regard to sexual harassment, the basic tenets were established in 1998 in two U.S. Supreme Court cases, Faragher v. City of Boca Raton and Burlington Industries, Inc., v. Ellerth. However, further guidance can be gleaned from the subsequent court cases testing these precedents. The issues being explored include who can be considered a supervisor, how anti-harassment policies should be crafted, and how companies should respond to allegations, conduct investigations, and take corrective action.

Conflicting Definitions
Within the broad category of workplace sexual harassment prohibited by law, there are different categories of harassment, and each is treated by courts as analytically distinct. Sexual harassment can result from one of two circumstances. An employee may suffer the “tangible employment action” form of harassment, where there is an adverse employment action such as discharge, demotion, or undesirable reassignment as a result of the harasser’s behavior or decisions. Victims can also claim “hostile work environment” harassment where victims suffer harassment that is sufficiently severe or pervasive to alter the terms and conditions of work without there being a specific adverse employment action.

The difference between these two forms of harassment is important for liability purposes. Also important is whether the alleged harasser is a supervisor. If an employee suffers an adverse employment action because of a supervisor, the employer is automatically held liable for harassment. No defense is available. The only remaining question is how much money the employee is entitled to receive. In contrast, if the supervisor’s harassment involves no adverse employment action, the employer may avoid vicarious liability by proving that it exercised reasonable care to prevent or promptly correct any harassing behavior.

Given the damage that can occur, companies are anxious to prove that the person who made the employment decision was not the alleged victim’s supervisor or manager. Courts have issued conflicting decisions on this issue. For example, in the U.S. Court of Appeals for the Seventh Circuit, courts have ruled that a supervisor must have the ability to hire, fire, demote, promote, or transfer the plaintiff. Other circuits, and the Equal Employment Opportunity Commission (EEOC), have determined that any employee who directs the plaintiff’s daily work activities can be considered a supervisor.

The divergence among the courts has led to a petition for the U.S. Supreme Court to review the issue in the form of Vance v. Ball State University (U.S. Court of Appeals for the Seventh Circuit, 2011) during the 2012 term. (Whether the Court would hear the case had not been announced at press time.) In Vance, a woman claimed to be harassed by her coworkers. One of them directed the plaintiff’s work. The plaintiff claimed that this made the coworker a supervisor. The trial court disagreed because the coworker had no power to demote or fire the plaintiff and, thus, did not meet the definition set forth by prior Seventh Circuit decisions. The plaintiff appealed the case to the U.S. Court of Appeals for the Seventh Circuit on the grounds that the circuit’s definition of “supervisor” was contrary to the intention of the Supreme Court and in opposition to other court rulings. The Seventh Circuit upheld the trial court’s decision.

Until the Supreme Court issues a clarification, the issue of who is considered a supervisor may differ depending on which circuit hears the case. That is important, of course, because it triggers automatic liability for the company if a court rules that a supervisor engaged in harassment that resulted in an adverse employment action.

Reasonable Care
If the harassing behavior does not involve an adverse employment action, a company may avoid liability by proving that it exercised reasonable care to prevent or promptly correct any harassing behavior.

A company should have a sexual harassment prevention policy in place as a first step toward being able to prove reasonable care to prevent or correct any harassment. The policy will be the foundation on which any defense is built.

The policy should, among other things, outline prohibited conduct, establish a complaint procedure that gives victims multiple avenues to come forward, and explain the range of disciplinary action that might be imposed on the harasser.

Dissemination. After formulating a policy, the company must make sure that all employees receive a copy and get trained on its provisions. The courts have repeatedly ruled that a thorough dissemination of the policy can help a company avoid liability. For example, in Christian v. AHS Tulsa Regional Medical Center (U.S. Court of Appeals for the Tenth Circuit, 2011), the court granted a company’s request for summary judgment—a review based on the facts of a case without a trial—in a sexual harassment case. The court ruled that the company was not liable for sexual harassment allegedly committed against an employee because it had a clear and widely disseminated policy and it investigated the employee’s claims promptly.

In the ruling, the court made note of the company’s efforts to ensure that its policy was widely known and understood. The hospital not only had a policy, but it also explained the policy in detail in the employee handbook. The policy was addressed again in the new-employee orientation and a third time at a special training session on sexual-harassment prevention.

The policy should require any employee who believes that he or she has been the subject of any form of harassment to report the matter immediately to a direct manager, next-level manager, human resources manager, a hotline, or a Web portal. Employees have often made excuses for failing to report offensive behavior, claiming that they were afraid they would not be believed or would be embarrassed or that the company would take no action. The courts will not hold employers responsible for that. If an employer is not properly put on notice, the law does not expect the employer to solve the problem.

Timely reporting. Employees must be instructed that reporting harassment in a timely fashion is essential for the company to properly respond. Timeliness is among the factors on which courts base their decisions. For example, in Baldwin v. Blue Cross Blue Shield (U.S. Court of Appeals for the Eleventh Circuit, 2007), one of the court’s primary considerations in rejecting the plaintiff’s claims was the fact that the employee waited more than three months from the time of the harassment to lodge a complaint. The court noted that employees must make a timely report no matter how difficult. In the written opinion of the case, the court said that the plaintiff “waited to file her complaint…because she feared being fired and felt that silence would best serve her career interests.” The court acknowledged that every employee could say this, but that the law “presents employees who are victims of harassment with a hard choice: assist in the prevention of harassment by promptly reporting it to the employer or lose the opportunity to successfully prosecute a claim.”

Training. Supervisors and managers must understand their responsibilities under the company’s anti-harassment policy. To that end, they should be trained on how to spot harassment and what procedures to follow when responding to an employee’s complaint.

Training is critical because the sexual harassment prevention policy must be actively and consistently enforced by the company. The mere creation of a policy will not shield the company from liability. For example, in EEOC v. Management Hospitality of Racine (U.S. Court of Appeals for the Seventh Circuit, 2012), the EEOC sued a restaurant on behalf of its female employees who claimed that they were sexually harassed by male employees. After a jury verdict in favor of the employees, the restaurant appealed the decision. In upholding the verdict, the appeals court noted that the company’s sexual harassment prevention policy existed on paper only.

To prove that appropriate training occurred, companies should keep a printed training log that shows the date of management training sessions, the contents of such sessions, and the names and signatures of all attendees. Such documents can be used to refute any accusation that the company fails to treat harassment with adequate seriousness.

Focal points. During training sessions, attendees should learn how to respond to practical challenges involving harassment and discrimination. The most prevalent and vexing of these challenges include tentative reporting, an accepting atmosphere, and a lack of witnesses.

Tentative reporting. If an employee approaches a manager saying “I just want to get something off my chest,” the manager needs to proceed with caution. Many times an employee wants to discuss harassment but wants to stop short of filing an official complaint. This is unwise. If an employer knows of harassing behavior, then it must investigate. The worst thing that an employer could do after being told of harassment, even informally, is nothing. Training for both staff and supervisors should address this issue. When such a report occurs, the manager should be trained to tell the employee that an investigation will be launched.

Accepting atmosphere. Another common issue is when a manager responds inappropriately to a report of harassment. This typically involves the manager brushing off a report or treating it as inconsequential. For example, a manager might say, “Joe said that? Well, that is just the way he is.”

That is the type of response that will get a company into legal trouble, so training programs must emphasize that this is never an acceptable response. Such a response eliminates any affirmative defenses and exposes the employer to inescapable liability.

No witnesses. If the employer conducts an investigation into the alleged harassment but cannot substantiate the report and questions the veracity of the allegations, the employer is not required to punish the alleged harasser. The requirement of a reasonable investigation does not mean that the employer must credit uncorroborated statements of the alleged victim if they are disputed. For example, in Baldwin, the court noted that “nothing in the [affirmative] defense puts a thumb on either side of the scale in a he-said, she-said situation.”

In those cases, the accused employee should be informed that the investigation found no evidence supporting the charge but that the company, while not presuming that any infraction occurred, is taking the opportunity to make sure that the rules are known.

To protect themselves, employers should train managers to document the complaint, document the investigation, and document that no definitive conclusion was reached. Further, it is wise to give both the alleged victim and the alleged harasser an additional copy of the anti-harassment rules, have them sign to acknowledge that they have received and understood the policy, and reiterate that the company takes complaints seriously. The company must also be mindful of the legal rights of someone wrongly accused and be careful not to harm the reputation of the alleged harasser where nothing is corroborated.

Once a report of harassment is received, investigations can be carried out in any number of ways. Employers do not need to conduct a trial-type proceeding to adequately respond to a complaint; rather, the requirement is for an investigation that is reasonable under the circumstances. This may include an informal inquiry that does not unduly disrupt the company’s business but fairly attempts to determine what took place. Courts afford deference to the employer’s business judgment if the employer conducts a reasonable investigation in good faith and selects a reasonable remedy.

With regard to the timeliness of the investigation, courts look at various factors. For example, in Sutherland v. Wal-Mart Stores, Inc. (U.S. Court of Appeals for the Seventh Circuit, 2011), an employee sued her company, claiming that she was harassed by a coworker. The employee alleged that the company failed to promptly respond to her complaint because it waited until the harasser returned from vacation. The court disagreed. It found that the company began its investigation the same day the complaint was made by interviewing the plaintiff’s coworkers.

The company contacted the alleged harasser to discuss the allegations the day he returned from vacation. The court found that the company could not have acted any faster than it did.

In another case, Crawford v. BNSF Railway Company (U.S. Court of Appeals for the Eighth Circuit, 2012), an employee claimed that her company’s response to her harassment allegations was too slow and that the company’s response to prior allegations against the accused were insufficient. However, the court found that the company’s actions were reasonable. It placed the accused on administrative leave within two days of the complaint and conducted the investigation over the subsequent two weeks.

Corrective Action
Once an investigation establishes that the harassment did occur, the employer must respond in a way that is likely to end the harassment. The law does not dictate a specific response; it requires only that an employer take “appropriate action” to correct the problem. Thus, depending on the severity of the conduct, a proper response may range from a mere notation in the employee’s file to a transfer, a demotion, or a termination.

In Crawford, for example, based on the findings of the investigation, the company fired the harasser. It was noted that the company had in other cases taken a different approach, counseling the person found guilty of harassment and requiring that person to attend a sexual harassment prevention seminar. The court noted that “the fact that appellants would have desired harsher responses does not make BNSF’s otherwise valid policy ineffective.”

Even the smallest misconduct should be addressed, however, and the actions taken should be documented, because if the behavior is ignored or allowed to fester, it may evolve into a major problem for the workplace. While there is no precise formula for proper corrective action, courts have ruled that creating a physical separation and minimizing work time together are reasonable in some instances and progressive discipline is reasonable in others.

All companies should be cognizant of the potential for liability from sexual harassment claims. To protect themselves, they must develop a comprehensive anti-harassment policy and make sure that all employees understand it and that its provisions are consistently enforced.

Greg Hare is a shareholder and Kat Kubis is an associate at Ogletree Deakins in Atlanta. Ogletree Deakins is a labor and employment law firm representing companies in all types of labor relations and legal matters.