When Tiffany Jones sued her former employer, Family Health Centers of Baltimore, for sexual harassment, most of her claims were pretty benign (e.g. her supervisor once remarked about “taking [her] somewhere”, he blocked her path in the hallway on one occasion and he sometimes stared at her through a crack in the door). One time, though, he allegedly came up behind her and “got up on [her] so close, [she] felt his private parts on . . . [her] buttocks” and his hand on her waist.”
Jones reported the incident to her manager, who suggested she report the matter further up the chain of command. Jones therefore approached the CEO on two different occasions but he was in meetings each time and could not meet. She then left and never came back, ignoring a call from the Human Resources Director a few days later asking her to come in for a meeting.
The policy protects us…doesn’t it?
In response to the company’s dismissal motion, a Federal District Court Judge in Maryland had no trouble finding that the one remark, the hallway encounter and the doorway peeping did not meet the test set forth by the United States Supreme Court test for a sexually hostile work atmosphere. That test requires a workplace that is ‘”sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
The judge felt differently about the physical contact, however, explaining that even an isolated event can alter the work environment if it is sufficiently severe. Therefore, Jones’ cleared her first hurdle, namely that she could present a credible claim of actual harassment.
Jones’ next task was to convince the judge that the company should be held liable for the supervisor’s harassing behavior. This is usually pretty easy since for the most part, supervisory harassment is automatically imputed to the employer. However, there is small window of hope for employers. Under the US Supreme Court decision in Faragher v. City of Boca Raton, If it can be shown that the company used reasonable care to prevent and promptly correct any harassing behavior, and the employee unreasonably failed to take advantage of these opportunities, the employer can escape liability.
The judge was prepared to let the company climb through the window and escape liability. First, he noted that the company maintained an anti-harassment policy, which is usually “compelling proof” of an employer’s reasonable care. He also offered that Jones may have unreasonably failed to avail herself of her options by rejecting the call from HR and by just popping in unannounced to see the CEO rather than making an appointment to visit with a very busy company executive.
But wait – even though the company maintained a policy on harassment, the judge found no proof that Jones had actually seen the policy or that it had been distributed to her. Interestingly, the judge suspected that Jones had in fact received the policy, and Jones herself never claimed she hadn’t, but without actual proof, of her receipt, the window slammed shut and the employer’s dismissal motion was rejected.
Bottom Line
When the Supreme Court gives you a clear directive on how to avoid liability, it is best to follow it. Employers can win sexual harassment claims if they can show that they tried to prevent such claims, and that they dealt with them appropriately if and when they occurred. The best way to do that is to enact a comprehensive policy banning sexual harassment (and other forms of illegal harassment as well), and then make sure that the workforce sees the policy and has access to it.
Publish the policy in handbooks, post it on bulletin boards and intranets, obtain acknowledgments and sign-offs from employees when they receive it and do periodic reminders and education sessions. A great policy does you no good if nobody reads it.