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June/July
2005
 Antiharassment
Policy Not Enough for Company to Assert Affirmative Defense
Is adoption and
dissemination of an antiharassment policy enough to protect a company
from employee harassment claims? Maybe not, according to a recent decision
by the United States Court of Appeals for the Sixth Judicial Circuit.
The decision provides insight as to how many courts view company EEO
efforts and what defenses may be available in future harassment cases.
In Clark v.
United Parcel Service, Inc. (6th Cir. 2005), UPS was sued by two
female employees who claimed they had been subjected to a sexually hostile
work environment as a result of the conduct of their supervisor. The
women alleged the supervisor told sexually explicit jokes, repeatedly
placed his vibrating pager against their legs, made comments about their
appearance, acted out sexual contact with them, suggested one of them
have a private meeting with him in a storage closet, and attempted to
look down one employee’s overalls to see her undergarments. The
supervisor allegedly showed one of the employees a pornographic cartoon
and complimented her on her performance in his dream the preceding night,
among other things.
Much of the supervisor’s
alleged conduct was done in the presence of other managers. When one
of the women asked other supervisors why the offending individual kept
getting away with his offensive conduct, the supervisors shrugged it
all off. Only when the conduct was reported to an employee investigating
the supervisor on other matters did the company take action against
him. He was allowed to resign under threat of discharge.
Like most companies,
UPS maintained an antiharassment policy, which it included in its employee
manuals and posted on company bulletin boards. The policy contained
a complaint procedure that directed employees to report objectionable
conduct to their supervisor or manager, the company’s human resource
or employee relations managers, or through the company’s toll-free
hotline number.
Under federal law,
and many state laws that parallel the language of Title VII, an employer
is automatically liable for sexual harassment committed by a supervisor.
The employer can avoid this liability only if (1) the supervisor’s
conduct does not result in tangible employment action against the victim
(such as termination, demotion, or adverse transfer), (2) the company
has “exercised reasonable care to prevent and correct any sexually
harassing behavior,” and (3) the “employee unreasonably
failed to take advantage of any remedial or corrective opportunities
provided by the employer or to avoid harm otherwise.”
The trial court
found that UPS satisfied these requirements and granted summary judgment
in UPS’s favor, thereby dismissing the case. The Sixth Circuit
disagreed, ruling the employees could proceed to trial. In so deciding,
the court of appeals held that publishing an antiharassment policy is
not enough—the company’s efforts must be comprehensive and
effective. In this instance, other UPS supervisors witnessed the conduct
and took no action, which the court considered evidence that UPS’s
policies were ineffective.
The court held that
a company’s antiharassment program must contain the following
minimum ingredients:
-
A company policy
that requires supervisors to report incidents of sexual harassment
they see or hear about;
-
A complaint
procedure that allows formal and informal complaints;
-
A bypass mechanism
that will allow an employee to complain without going to managers
he or she fears may retaliate; and
-
Employee training
regarding identification and prevention of unlawful harassment.
A company program
that includes these features will generally satisfy the standards imposed
by federal and
state courts.
Employer
Notes: This case reinforces the importance of maintaining well-written
antidiscrimination policies, regularly distributing and posting those
policies, training employees—particularly supervisors—regarding
the identification and reporting of objectionable workplace conduct,
and providing employees multiple avenues for reporting such conduct.
Employers that take these steps should be well prepared to prevent harassment
in the first place, remedy it quickly if it happens, and successfully
defend employee claims.
Submitted by Laurence
E. Stuart, Partner, Legge, Farrow, Kimmitt, McGrath & Brown LLP,
Houston, Tex. You can contact Mr. Stuart at lstuart@leggefarrow.com.
Reprinted from
Council’s Preventing Employment Law Problems in the
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