Tuesday, July 3, 2007

Harassment training must be effective to provide a defense


A case handed down by the Sixth Circuit last week provides a good example of how not to handle a sexual harassment investigation. In Parker v. General Extrusions, Inc., the plaintiff, Nancy Parker had been subjected to several years of pervasive harassment, the details of which you can read in the opinion, and which most companies would find patently inappropriate and would result in a full and complete investigation. Instead of investigating Parker's complains, however, witnesses testified at trial the company's responded by generally ignoring her, and by saying behind closed doors that the workplace was a mill-type environment, that she could work somewhere else if she was uncomfortable, and that the harassment was merely a joke. A jury awarded Parker $25,000 in compensatory damages and $75,000 in punitive damages. The district court tossed out the latter, holding that the company took the harassment complaints seriously and made a good faith effort to comply with Title VII. The Sixth Circuit disagreed and reinstated the punitive damages verdict. The company argued that because it had a sexual harassment policy and trained its employees on harassment, it made a good faith effort to comply with Title VII and should not be liable for punitive damages. To the contrary, witnesses at trial testified that they could not remember any harassment training taking place prior to Parker's complaints, and regardless the policy was not enforced. The company's HR manager testified that in his 21 years at the company, he could not remember ever disciplining any forepersons for not reporting a witnessed incident of harassment. On that basis (among others), the appellate court reinstated the verdict.

The lesson here is basic but one that is worth reinforcing. Harassment policies should be reviewed frequently and updated when necessary. Training should take place annually, and not merely as a reaction to an issue in the workplace. Policies should be uniformly enforced, and employees should be disciplined for failing to follow them. Combatting sexual harassment should be a company-wide initiative. Companies can never guarantee against a lawsuit by a disgruntled employee, but those that are proactive about workplace harassment will stand the best chance of successfully defending against such a lawsuit.

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