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Thursday, February 21, 2008

Some lessons in remedying sexual harassment

Today, we finish our look at Hawkins v. Anheuser-Busch. We've already examined the opinion's recognition of a claim for coworker retaliation, and its ruling allowing the use of evidence of the serial harassment of non-plaintiffs. I want to finish by discussing what Anheuser-Busch did wrong and what it did right in responding to the various harassment complaints it received about Robinson, and draw some general conclusions on what is and is not an appropriate remedial response.

Before getting into the specifics of the case, it is helpful to review the standard for an employer's liability for coworker harassment. In a coworker harassment case, the employer is not vicariously liable for the acts of harassment, as it would be if the harasser is a manager or supervisor. Instead, an employer's liability for coworker harassment hinges on the reasonableness of the employer's own acts or omissions in responding to and remedying the harassment. An employer's response is unreasonable if it manifests indifference or unreasonableness in light of the facts that the employer knew or should have known. Conversely, an employer's response is adequate if it is reasonably calculated to end the harassment.

As the Court points out, merely having a harassment policy is not enough to shield an employer from liability:

The best anti-discrimination policy in the world will not help the employer who, rather than fulfill its duty to act on complaints about a serial harasser, lets the known harasser continue to injure new victims. Because Robinson was a known serial harasser, the brewery is liable its its response to Cunningham's or Hill's complaints demonstrates an attitude of permissiveness and was not reasonably calculated to end Robinson's pattern of harassment.

Armed with complaints of harassment by Cunningham and Hill against Robinson, coupled with the complaints by other employees, let's first look at what the brewery did wrong in responding to the harassment:

  • It removed the complainants from their line without undertaking any additional, fundamental remedial action, such as training, warning, or monitoring Robinson. Merely separating the complaining party from the harasser is not enough; instead, the company has to proactively take additional steps reasonably calculated to prevent and end the pattern of harassment.
  • It failed to counsel Robinson upon its first notice of a problem. Such counseling should have included the nature of the inappropriate behavior, a reminder of the company's prohibition against sexual harassment, and a warning that the company would not tolerate any future harassment or retaliation and that future harassment would result in discipline up to and including termination.
  • It failed to implement any additional checks to prevent future harassment, such as monitoring the harasser for future non-compliance, checking in with the victims to ensure that they was no longer being bothered, and additional follow-up counseling with the harasser.
  • It failed to reopen the investigation into Hill's complaint after it received information that witnesses were chilled from talking out of fear of Robinson.

The Court pointed out the "marked difference" in the brewery's handling of complaints against Robinson by 2 other employees 3 years after Cunningham's and Hill's complaints. In response to these later complaints, it promptly launched an investigation, suspended Robinson, and fired him. Given this prompt and effective remedial action, Anheuser-Busch was insulated from liability from the 2 later complaints.

So, at the end the day, what do we take away from the various pieces and parts of the Hawkins case. Perhaps it's best just to use the Court's own words:

The remedies of Title VII would be rendered impotent if employers dealing with serial harrassers were allowed to throw up their hands after their first effort to deal with the harrasser proved unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management.

The existence of a serial harasser suggests a problem that goes deeper and is more systemic than merely one harasser and the specific victims. It suggests that something simply is not working in how a business is addressing workplace harassment and retaliation. An employee like Robinson should serve as a signal to a company that it needs to scrap its entire harassment protocols and rebuild them from the ground up. That rebuilding should start with the harassment policy and comprehensive re-training. The goal, however, must be to change the way a company, its manager and supervisors, and its employees think about harassment, both in their attitudes towards it and the collective effort to eliminate it from the workplace.

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