Tuesday, November 13, 2007

Remedial action must be meaningful to save employer from harassment liability

Yesterday I wrote about how to implement an effective complaint procedure to help ward off harassment claims (A Whopper of a Sex Harassment Claim). Today, Engel v. Rapid City School District will illustrate the dos and don'ts of responding to a harassment complaint after it is received.

The facts of Engel v. Rapid City School District are fairly simple. In March 2003, a school district employee complained that David Herrera, a non-supervisory co-worker, had been sexually harassing her. In response, the school district immediately suspended Herrera without pay and launched an investigation led by the school superintendent. As part of the investigation, Engel was asked if she had been harassed by Herrera, to which she answered affirmatively and provided a written complaint describing the harassment.

Upon completion of the investigation, the school district concluded that Herrera had engaged in the following harassing conduct: (1) twice requesting that a female employee look at pornographic images of male and female sex on his computer; (2) rubbing or massaging the neck of female co-workers without their prior permission; (3) stroking the hair of co-workers without their permission; (4) remarking about the physical anatomy of female co-workers and asking to feel a co-worker's butt; (5) attempting to look down the shirts of female co-workers; (6) persistently inquiring about whether or not a female co-worker was wearing thong underwear, and if so what color and did it match her bra; (7) leering at females co-workers; (8) remarking to a female co-worker that she smelled good and that he needed to find some lotion and go into the bathroom; (9) commenting about oral sex and sexual positions which could be used between a female co-worker and her husband; and (10) attempting to reach in a woman's shirt to grab her identification badge.

Given the egregiousness of Herrera's misconduct, the school district would have been justified in terminating him at that time. Instead, it opted for a less severe penalty, a written final warning, which provided: "Any future complaints of harassment by you will result in your immediate termination of employment.... If there are any additional instances of inappropriate conduct, whether it be touching, verbal or otherwise, your employment will be terminated.... Continued conduct of the type mentioned above will not be tolerated any further. As stated above, if there is an additional complaint, your employment with the District will be terminated."

Herrera, however, was undeterred. After returning to work he tried to talk to Engel in the hallway, used the school intercom to speak to her, and, according to Engel, undressed her with his eyes. She again complained, but instead of terminating Herrera, the school district merely re-suspended him. At the same time, it also softened its stance on the consequences of any future acts of harassment: "Any future complaints of conduct of harassment or violation of the aforementioned terms and conditions will result in additional administrative action, up to and including the termination of your employment." When Herrera continued to leer at Engel following his return from the second suspension, she resigned and sued the school district for sexual harassment.

Because Herrera was merely a co-worker and not a supervisor, the school district can only be liable for the harassment if it knew or should have known of the harassment and failed to take immediate and proper corrective action. The remedial action must be reasonably calculated to stop the harassment.

The appellate court found that the school district could not be liable for any of Herrera's actions that occurred before it received the initial March 2003 complaint. It had a written anti-harassment policy and formal complaint procedure, and received no complaints about Herrera before March 2003. Moreover, the court found that the school district's response following its receipt of the first complaint was prompt, comprehensive in its scope, and stern in its warnings. In the court's words: "[T]he law does not require an employer to fire a sexual harasser in the first instance to demonstrate an adequate remedial response." Had it chosen to do so, however, I highly doubt that Herrera would have had any claim, and the school district would have been insulated from claims by other employees.

The Court was less complementary of the school district's handling of the continuing complaints after Herrera returned from suspension: "That an employer responds adequately to an initial report of sexual harassment ... does not discharge the employer's responsibility to respond properly to subsequent reports of offending conduct by the harasser." In the Court's view, it was not only significant that Herrera continued to harass Engel, but that the school district's response to the subsequent harassment lessened in severity:

Significantly in our view, RCSD's decision to respond to Herrera's continued harassment by decreasing, rather than increasing, its threatened sanctions may reasonably be viewed as contributing to a negligent response. The reasonableness of an employer's response to repeated sexual harassment may well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before will be effective.... Here, RCSD had threatened to terminate Herrera if any additional substantiated complaints of harassment were made against him, but ... RCSD did not follow through on this promise. Instead, RCSD responded to Engel's additional complaints by suspending him and then advising that further inappropriate conduct could lead to administrative action, "up to and including the termination of [his] employment" – thus opening the possibility that even a third round of harassment would not cost Herrera his job. Engel reasonably contends that this backtracking may have emboldened Herrera, and thereby contributed to his continued harassment of her.... In sum, Engel has presented evidence that could support a reasonable finding that some elements of RCSD's second remedial action were insufficient to address Herrera's ongoing harassment, that the remedial action did not stop the harassment, and that the second remedial action may actually have encouraged Herrera to feel that he could safely continue certain activities.

An employer does not discharge its duty to remedy harassment merely by taking some corrective measures. Instead, the corrective measures must be reasonably designed to prevent future harassment. To attempt to minimize liability for co-worker sexual harassment, businesses should be aware of the following factors upon receipt of a harassment complaint:

  1. Promptness. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct.
  2. Thoroughness. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. Egregious allegations such as those in the Engel case, however, usually require a more comprehensive investigation.
  3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
  4. Communication. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
  5. Follow-through is crucial. Rapid City School District's fatal flaw was that it did not carry out its threat to terminate Herrera's employment if the harassment did not stop. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through on that threat, or face the risk of being second guessed like the employer in Engel.

Hindsight is 20/20 and investigations are always subject to being second guessed. Promptness, consistency, thoroughness, and follow-through are a business's best friend in responding to harassment complaints. A failure of any one could expose a company to liability for failing to take appropriate remedial action. Complacency is also dangerous. As the Engel case illustrates, one cannot assume that remedial measures are working, and if there is reason to believe they are not (such as a second complaint), more severe measures must be taken.