Yesterday, we discussed why employers must adopt comprehensive, well-known anti-discrimination policies. That way, victims know what to do to get their complaints of harassment addressed.
Today, we’re going to focus on the importance of a prompt employer response that is reasonably designed to end the complained-of behavior.
We’ll use this recent Sixth Circuit decision as our example.
According to the plaintiff, she worked the midnight shift of July 29-30, 2018, with two female coworkers. The three chatted during a scheduled break about their bras and their varying qualities and styles. Comparing bra types, all three women pulled out their bra straps to show the others. The plaintiff alleged that while she was showing her bra strap, one of the other women suddenly walked over to her, reached down her shirt, pinched her nipple, and pulled her breast out of her bra. When the plaintiff angrily asked why her coworker grabbed her breast, she stated, “well, you have nice nipples,” and laughed.
This would eventually become a hostile work environment claim. And by the time it made its way to the Sixth Circuit, you know what? The employer did not, for the appeal, argue as a factual matter that the plaintiff was never sexually harassed. Nor did it argue that the harassment she experienced was not severe or pervasive enough to create a hostile work environment.
Instead, the employer argued that it responded appropriately to the situation.
Employers are not automatically liable for a coworker’s sexual harassment. Instead, any liability employers face flows from their negligence in responding to complaints of harassment. Here, the court concluded that the employer reasonably responded to the plaintiff’s subsequent complaint of sexual harassment.
Here’s what it did:
The plaintiff complained on August 6. Her manager got a written statement from her. A week later, the manager interviewed the other two women, who denied the plaintiff’s allegations. And even though the manager concurred that the plaintiff’s allegations were unsubstantiated, she still issued a written warning to the alleged harasser. Also, the manager urged the plaintiff to report any more future instances of sexual harassment.
Not only did the plaintiff never report any more allegations of sexual harassment, but also she did not interact with her alleged harasser (other than a passing comment months later). Indeed, the plaintiff admitted that the sexual harassment ended.
So, even if the conduct the plaintiff alleged up to her complaint could support a sexual harassment claim, the company’s action was sufficient to stop the harassment and to relieve itself of liability.
Now, you’ve got a good blueprint for your workplace.
- Train your managers to take complaints of sexual harassment seriously.
- Get complaints reduced to writing.
- Investigate complaints quickly (don’t hesitate to use a trained outside investigator).
- Warn (and re-issue policies) even when claims are unsubstantiated.
- Urge complainants to continue to report any additional violations.
This Friday, October 21, 2022, join me and my partners, Amy Epstein Gluck, and Justin Nahama, on Zoom at Noon ET for a one-hour discussion on employee mental health and wellbeing. It’s free.
Click here (https://bit.ly/MentalHealthSuccess) to register.
We’re lucky to have Justin and Amy share their time and wisdom.
Among other things, Justin leads THE CHOPRA FOUNDATION’s global programs and research efforts to inspire joy and create a critical mass for a peaceful, just, sustainable and healthy world. Justin also founded NuroLux, which supports the Autism community by restoring hope for families impacted by Autism by providing them with the technology to light the path ahead.
We’ll tap into Justin’s passion and authenticity to discover ways to improve employee mental health and well-being in your workplace.
Amy is Employment Counsel and Employment/Litigation Partner at FisherBroyles, LLP and Founding Member, DC at Chief, a private network built to drive more women into positions of power and keep them there. Amy regularly counsels companies on ADA/FMLA issues and spearheaded our firm’s efforts to improve our colleagues’ mental health and wellness. She also developed the “Happy Hour,” a regular voluntary meeting on Zoom where attorneys discuss mental health and self-care to normalize and destigmatize these topics.
We’ll spend some time with Amy on Friday discussing not only HR-compliance issues surrounding employee mental health but also some practical ways to make it a priority for employees to help themselves and provide support for others.
If any of these topics pique your interest, please join us on Friday, October 21, 2022, at Noon ET for the next edition of The Employer Handbook Zoom Office Happy Hour.