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.

Can employers base employment decisions on employees' personal internet activities?

Courtesy of The Washington Post comes this gem:

Kevin Colvin, an intern at the Anglo Irish Bank of North America ... e-mailed his manager on the afternoon of Oct. 31 claiming "something came up at home" in New York and that he needed to miss work the next day. For whatever reason, perhaps managerial intuition, his boss decided to inspect Colvin's Facebook page on Nov. 1 and apparently found pictures of the intern dressed as a fairy, beer in hand, at a Halloween party in Massachusetts.

Rather than reprimand him, the manager decided to have a little fun. He shot Colvin an e-mail back stating: "Thanks for letting us know -- hope everything is ok in New York. (cool wand)" with the fairy picture attached. And if that weren't embarrassing enough, the manager reportedly BCCed the rest of the company. Those images are now being forwarded to offices around the world for cubicle dwellers to enjoy.

(The article has a link to the offending picture, for those who are curious).

The internet now provides a plethora of social outlets -- blogs, social networking sites such as MySpace, Facebook, and Twitter, video repositories such as YouTube and Break, and even an entire alternate universe, Second Life. Once someone puts something out on the internet, it becomes fair game for anyone and everyone to see, employers included. The WP article cites a vault.com survey in which 82 percent of employers responded that negative information from an online profile would affect their decision to hire an applicant. Presumably a similar but likely small number would also consider negative online information in a decision to continue the employment of a current employee. It is hard to imagine that an employer is somehow invading an employee's privacy by viewing something that is publicly available on the web. If an employee is at-will, and standards are otherwise neutrally applied, there should not be anything unlawful about making a hiring or employment decision based on an employee's personal internet presence, especially if you catch the employee in a lie, such as was the case with Kevin Colvin.

What else I'm reading this week #5

Another week, another batch of excellent employment law and HR-related posts from the blogosphere.

30 Interview Questions You Can't Ask and 30 Sneaky, Legal Alternatives to Get the Same Info, from HR World, answering the question of what can and cannot be asked of applicants during job interviews and how to still obtain relevant, job-related information without discriminating. As an aside, I don't find the alternatives "tricky." There's nothing underhanded about asking an interviewee what days he or she is available for work instead of asking about religion, or asking whether an employee is available to work on short notice or overtime (if it is required) instead of whether he or she has small children at home. It's simply good practice to determine as much as you can about an applicant's fit for a position while staying within the parameters of what is an is not legal to ask.

Employee Resigns - Walk Them Out the Door Or Let Them Work a Notice?, from The HR Capitalist, on the issue of whether or not to accept a two-week notice from a resigning employee.

New Child Care Option: Bring Baby to Work?, from the ABA Journal, on employers who allow employees to bring their children with them to work.

"Supreme Court To Decide Age Discrimination Case!" - Is This Important to Employers in Connecticut?, from the Connecticut Employment Law Blog, citing yours truly and remarking that the Supreme Court's decision in Federal Express v. Holowecki will most likely have little practice effect because of the idiosyncrasies of EEOC practice under the ADEA. While we're discussing Federal Express v. Holowecki, I should mention that in Ohio this case means even less. Ohio's employment discrimination statute provides for a private right of action with no requirement of first filing a discrimination charge with any agency, state or federal. Employees in Ohio can go to court on any discrimination claim without ever having even thought about the civil rights commission or the EEOC. The only caveat is that age claims filed in this way have a 6 month statute of limitations, while all other types of discrimination have a 6 year statute.

Do You Feel Dirty When You Google Candidates?, also from The HR Capitalist, advising why employers should be "Googling" job candidates. Let me add that as long as companies are Googling all applicants, and not singling out those of certain protected classes, there is nothing inherently unlawful about this practice.

Work/Life Balance, the NFL and Bereavement Leave, also from The HR Capitalist, commenting on he Minnesota Vikings docking wide receiver Troy Williamson one game check for missing a game against to attend the funeral of his grandmother.

Tracking employees who are slackers, from Sequence Inc. FRAUDfiles, feigning surprise that employees abuse paid leave policies.

Public Policy Dictates that Web-Based Privileged Emails Be Protected, Notwithstanding Employer's Right to Inspect Laptop Contents under Email Policy : Electronic Discovery Law, from Electronic Discovery Law, reporting on Sims v. Lakeside School, a federal employment discrimination case out of Washington State, which held that an employee has no reasonable expectation of privacy in the contents of an employer-furnished laptop, including emails sent and received on an employer email account, but preserving the privilege of emails sent to his lawyer and spouse.

Age discrimination lawsuits and plaintiffs' victories continue to rise

When I started this blog six months ago, one of the first posts was on the proliferation of large jury verdicts in age discrimination cases. (See Age discrimination lawsuits continue to rise)

The front page of today's Cleveland Plain Dealer picks up this theme that more age discrimination cases are going to trial, and more are ending in big verdicts for employees. The article cites last year's $16 million dollar verdict obtained by Tommy Morgan against New York Life, in addition to other multi-million dollar verdicts handed down local courts in other age discrimination cases. A former colleague of mine, Marty Wymer, correctly points out, "Everyone on the jury is either over 40 or a close family member is over 40," and that plaintiffs benefit from these jury demographics. Tommy Morgan highlights the theme that plaintiffs use to drive many of these case to big verdicts: "They were making room for younger people."

The lessons for employers to take from these large verdicts haven't changed since I first wrote on this issue:

1. Well documented, legitimate, reasons for a termination are more important now than ever, as the stakes in these cases continue to rise. Indeed, under Ohio law, the stakes in these cases are higher than ever, as unlike its federal counterparts, Ohio's employment discrimination statute contains no caps on damages.
2. Judges and juries continue to punish companies where there exists a perception that the employee was treated unfairly, often times regardless of any discriminatory motive.
3. All legal issues aside, the golden rule is the best risk management practice -- employers should treat employees as they would want to be treated if in their shoes. Juries are comprised of many more employees than employers, and if those jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to punish the employer, and the dollars needed to resolve the case will be much lower, if needed at all.

Mmmmmmmm, arbitration clauses

Arbitration clauses and their enforceability is not the most scintillating topic in the annals of employment law. So, I took some (but not much) notice of today’s 6th Circuit decision in Seawright v. American General Financial Services, in which the Court upheld an arbitration clause contained in an employment policy over the employee’s objection that she had never assented to be bound by its terms as she never signed any acknowledgment of the policy. The majority found that Seawright’s mere continued employment after receiving the policy constituted valid assent. Because she continued working and never objected to the arbitration clause, she was bound by it.

The dissent, clearly troubled by the notion using the failure to express a lack of assent as evidence of assent, illustrates its point by quoting one of the great thinkers of the late twentieth and early twenty-first centuries, Homer Simpson:

Homer Simpson talking to God: “Here’s the deal: you freeze everything as it is, and I won’t ask for anything more. If that is OK, please give me absolutely no sign. [no response] OK, deal. In gratitude, I present you this offering of cookies and milk. If you want me to eat them for you, please give me no sign. [no response] Thy will be done.” The Simpsons: And Maggie Makes Three (Fox television broadcast, Jan. 22, 1995).

Who says cartoons rot your brain?

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.

A Whopper of a Sex Harassment Claim

One of the surest ways for a company to guard against harassment lawsuits is to have in place a reasonable mechanism by which a victim of harassment can complain to the company. In today's workplace, one would be hard pressed to find a company that does not have a harassment policy, either in its employee handbook or otherwise. It is not enough, however, merely to have complaint procedures in place. Those procedures much be understandable, workable, and meaningful for them to provide any protection to an employer. EEOC v. V & J Foods, out of the 7th Circuit, illustrates the important distinction between a complaint procedure that is or is not meaningful, and the consequences that can befall an employer with an unworkable system.

Samekiea Merriweather, 16 years old, worked after school and on weekends at a Burger King restaurant. It was her first paying job. Unfortunately for her, her boss and the store's general manager, Tony Wilkins, had a propensity of sleeping with his female employees. He rubbed up against her, tried to kiss her, told her he wanted a "young girl" because of "their body. You know, it's not all used up." He offered $600 to have sex with him in a hotel room," and when she refused and told him she had a boyfriend, he told her he wasn't going to do anything else for her because she was giving her body away for free instead of selling it to him. Samekiea, both on her own and through her mother, repeatedly complained of the harassment to her shift supervisors and the assistant manager, who essentially ignored her. Shortly after Samekiea turned down Wilkins's offer to pay her for sex, he became hostile towards her and fired her.
Instead of summarizing the Court, I'll merely quote from the well written opinion of Judge Posner:

[A]n employer can avoid liability under Title VII for harassment (on a ground, such as sex, that constitutes a form of discrimination that the statute forbids) of one of his employees by another by creating a reasonable mechanism by which the victim of the harassment can complain to the company and get relief but which the victim failed to activate....
The mechanism must be reasonable and what is reasonable depends on “the employment circumstances,” ... and therefore, among other things, on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable. In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet....
An employer is not required to tailor its complaint procedures to the competence of each individual employee. But it is part of V & J’s business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager....
Ignoring this point, the company adopted complaint procedures likely to confuse even adult employees. The employee handbook that new employees are given has a brief section on harassment and states that complaints should be lodged with the “district manager.” Who this functionary is and how to communicate with him is not explained. The list of corporate officers and managers at the beginning of the handbook does not list a “district manager,” or for that matter a “general manager,” but instead a “restaurant manager”; and there is evidence that employees confuse “district manager” with “restaurant [or general] manager” — that is, Wilkins, the harasser. There is a phone number on the cover of the handbook, and if you call it you get a receptionist or a recorded message at V & J’s headquarters. But an employee would not know whom to ask for at headquarters because she is not told who her district manager is or the district of the restaurant at which she works.
If an employee complains to a shift supervisor or assistant manager, that person is supposed to forward the complaint to the general manager (and thus in this case to Wilkins) even if the complaint is about the general manager. After receiving the complaint the general manager is supposed to “turn himself in,” which of course Wilkins did not do. Nor did the shift supervisors or assistant manager report Merriweather’s complaints to Wilkins or to anyone else. A policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law….
An unreasonably costly complaint mechanism would not be reasonable. But it would cost very little, certainly for a company of V & J’s size, to create a clear path for complaints of harassment and other forms of illegal discrimination.... All that it would have to do, we should think, would be to post in the employees’ room (thus not visible to the restaurant’s customers) a brief notice that an employee who has a complaint about sexual harassment or other misconduct can call a toll-free number specified in the notice. The number would ring in the office of a human relations employee and the receptionist would identify the office as that of the company’s human relations department....

Because of the ineffective complaint procedure, Merriweather’s lawsuit was reinstated.
There are several lessons to be learned in the drafting and enforcement of an effective harassment complaint procedure:

1. Comprehension. It must relate to and be understandable by the employees who are going to rely upon it. It cannot be written in legalese or jargon. If your workforce is multi-lingual, so should the harassment policy.
2. Confidentiality. It must not only explain to whom complaints can be made, but how to confidentially contact those people.
3. Options. It must provide optional avenues for complaints that guard against an employee being faced with the Hobson's Choice of staying silent or complaining to the harasser. In Judge Posner's cautionary words: "A policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law."
4. Policing. It should mandate that supervisors or managers report to senior management and/or human resources any complaints they receive or any conduct they perceive that may be a violation of the harassment policy.
5. Publication. It must be disseminated to the employees, should be conspicuously posted in the workplace, and the workforce should receive periodic training on the policy and complaint procedures.