Monday, November 19, 2007

Failure to take advantage of remedial meaures dooms employee's sexual harassment claim

In what has become an unintentional series on employers' responsibilities related to workplace harassment, today's installment will examine a company that properly promulgated an effective harassment policy, meaningfully responded to a complaint upon receipt, and in the process saved itself from liability for some fairly offensive conduct by a supervisor. Brenneman v. Famous Dave's of America provides a solid example of what to do, in contrast to last week's two examples of what not to do.

Christine Brenneman sued Famous Dave's for sexual harassment. She claimed that her immediate supervisor, David Ryburn, subjected her to a hostile work environment through the following actions: daily winks and blowing kisses; at least three slaps on her buttocks; at least twice daily pulling on the badge attached to his belt; when she was having difficulty putting a letter into an envelope, telling her to "pretend it was a condom and slip it on real soft"; and when she asked him to "stab" a receipt, responding, "I'd love to stab you." There was no issue as to whether those incidents created a hostile work environment, but whether (1) Famous Dave's exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) whether Brenneman failed to take advantage of any preventative or corrective opportunities provided by the employer or otherwise to avoid harm. Because Brenneman unreasonable quit her employment and did not suffer a tangible employment action, proof of both elements would permit Famous Dave's to escape liability for the harassment by its supervisor, for which it would otherwise have been vicariously liable.

So let's look at Famous Dave's policies and how it responded to Brenneman's complaint:

  1. Anti-harassment policy. Famous Dave's had a facially valid anti-harassment policy, with a non-retaliation provision, and a flexible reporting procedure, listing four different people an employee could contact in case of harassment. Famous Dave's also maintained a 1-800 employee hotline that employees could use to report harassment. It distributed the policy to all employees, including Brenneman, and specifically trained about the policy and how to use it.
  2. Prompt corrective action. When Brenneman reported the harassment via the 1-800 hotline, Famous Dave's immediately sent an HR representative to investigate and stop the harassment. It attempted to work out a new schedule with Brenneman to keep her away from Ryburn. It also offered to transfer her to a different store 5 miles away. Brenneman did not accept any of the remedial measures, and instead quit.

Famous Dave's did most things right in responding to Brenneman's complaint. Unlike the employer in EEOC v. V & J Foods, Famous Dave's had a meaningful anti-harassment policy. It was widely disseminated, the employees received training about the policy, and they were given multiple avenues to complain, including a simple 1-800 hotline to call. Unlike the employer in Engel v. Rapid City School District, Famous Dave's acted promptly and tried to implement what it thought was reasonable, meaningful corrective action to end the harassment.

I question whether offering to transfer the complainant is the best practice, although a complainant does not have a legal right to the remedial action of her choice, so long as the action remedies the harassment and the complainant does not suffer any adverse consequences for complaining. For example, there could be a difference between a transfer to a store 5 miles away as compared to 50 miles away. The corrective action must be corrective, not retaliatory.

It is also unclear from the opinion if this the was first complaint levied against Ryburn, and what consequences he suffered for his misconduct. Assuming this was his first instance, I would like to see him undergo some harassment re-training (either one-on-one, or as part of an organizational training session), and be clearly warned that any further infractions will result in his termination. If he was a serial offender, or had other performance problems, termination may be the preferred avenue.

Let me add that harassment training is an on-going obligation. It does not end after an employee receives the handbook or anti-harassment policy. It should be discussed with all employees during orientation, and organizational training should take place at least once every two years, or sooner if a problem arises.