Thursday, June 22, 2017

Reporting harassment down is no trigger for employer action, says 6th Circuit

Employers have a legal obligation to investigate known sexual and other unlawful harassment, and exercise reasonable care to prevent and promptly correct any unlawfully harassing behavior. When in harassment “known” by an employer such that it triggers this obligation? EEOC v. AutoZone (6th Cir. 6/9/17) offers some key guidance when an employee fails to report harassment up the chain of command per her employer’s written harassment policy.

LaKindal Smith, an AutoZone sales manager, alleged that her store manager, Gustavus Townsel, sexually harassed her over a period of two months including making lewd and obscene comments and grabbing her genital area.

AutoZone’s sexual harassment policy provided three different avenues for an employee to report suspected harassment: management up the chain of command, human resources, or a toll-free harassment hotline. Smith initially availed herself of none of these, instead calling a lower-level management employee at another store to discuss Townsel’s conduct. She waited over a month to finally call someone in human resources, at which point AutoZone investigated and transferred Townsel out of the store.

Smith claimed that AutoZone failed to exercise reasonable care to prevent and promptly correct Townsel’s harassment. The court disagreed, concluding that AutoZone’s prevention and correction of the harassment was sufficiently prompt. It took swift action as soon as Townsel reported the harassment to HR per its harassment policy. Moreover, Smith’s conversation with a lower-ranking employee did not trigger any obligation of AutoZone to act.

But calling a lower-ranking co-worker at a different AutoZone store was not one of the three options that AutoZone provided for reporting sexual harassment. Smith knew that she could call the AutoZone hotline. But she never did so. Each of the victims had a responsibility to report Townsel’s behavior up the ladder, to human resources, or to the AutoZone hotline. We cannot impute the victims’ knowledge to AutoZone when none of them took any actions that would alert someone with the power to stop Townsel until Smith belatedly talked to Graham in October.

I’m not saying that management should ignore harassment it knows about if its reporting does not fit neatly into a policy. And, had the court concluded that Townsel was a statutory supervisor, this case would have turned out much differently for AutoZone. However, because Townsel was not a supervisor, and because Smith failed to avail herself of AutoZone’s harassment policy, AutoZone escaped liability. Does your harassment policy provide reasonable harassment reporting procedures, including multiple avenues for employees to report harassment? If not, this case is a good reminder to dust off that policy, review it, and make necessary updates.