Monday, October 19, 2015

The other side of the coin on the appropriate response to harassment

selleck_schoolLast week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace.

The allegations of sexual harassment in Ellis v. Jungle Jim’s Market (Ohio Ct. App. 10/13/15) [pdf] are pretty egregious. Among the worst were Dana Ellis’s supervisor unzipping his pants and asking her to take a look, telling her he wanted to “bend [her] over and BF” her, sticking out his tongue and simulating licking her, and asking her what positions she likes to have sex in, if she likes oral sex, and if she swallows.

While those allegations are bad, the company’s response was even worse. When Ellis’s co-workers complained to the store manager, Cathy Dick (really her name),about the harassment, she merely provided the supervisor a warning and kept the employees working together.

With all that, however, the employer still could have prevailed in the case because the employer did not take a tangible employment action against Ellis. All it had to prove was (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

On prong “a”, this employer failed miserably, not only in the after-the-fact remediation of the harassment, but also in the before-the-fact preventative measures:

Although Jungle Jim’s had a sexual harassment policy in place at the time Ellis began her employment, there is an issue of fact as to whether Jungle Jim’s actively implemented the policy or trained its employees and supervisors on the policy. Evidence was introduced that when Ellis received the policy in October 2012, the policy was not up-to-date as it advised Ellis to report sexual harassment complaints to “Norma Sarosy,” who, according to Dick, had died in February 2012. Ellis was not provided with a revised copy of the policy informing her that Dick now chaired the committee responsible for investigating sexual harassment complaints. Dick also testified that prior to Ellis filing the present lawsuit, Jungle Jim’s did not provide any sort of training to its employees regarding harassment or discrimination, although she did speak with some managers about the issues in an effort to train them. Dick explained that although she had been placed in charge of training managers and investigating complaints about sexual harassment, she had not received any formal training or attended any seminars on the issue. Rather, her knowledge on the issue came from reading “two or three” books about harassment and discrimination over the last one to seven years.

In other words, no training equals big problems for an employer.

What does this case teach out about our anti-harassment programs? Merely having a policy is not enough. If you do not train your supervisors, managers, and others in how to response to workplace harassment, you will have a difficult time avoiding liability when things go wrong. Anti-harassment training should be part of your onboarding process for all employees. It does not have to be a deep-dive on every nook and cranny of U.S. workplace harassment law for each hire (although that would be best). At a minimum, however, you should have someone knowledgeable about harassment and your policy against it sit down with each new hire, explain your anti-harassment policy, and offer the opportunity to answer any questions. That, plus comprehensive annual harassment training for all employees, should mitigate against a court finding that you failed to actively implement your policy or train your employees and supervisors on it—a finding that could prove fatal to your defense.