Total Articles: 16
11 Employer FAQs: (No. 4): Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?
Over the next 8 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.
Court Rejects Worker's Discrimination and Retaliation Claims.
A federal appellate court recently upheld a trial judge's decision to dismiss an employee's claims of discrimination, hostile work environment harassment, and retaliation. The Third Circuit Court of Appeals reached this conclusion based primarily upon the "extraordinary lengths" to which the employer went to investigate the employee's complaints.
Employer’s Continuing Efforts to Resolve Issues Complained of by Employee Supports Dismissal of Discrimination Complaint
In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has upheld a lower court’s decision to dismiss an employee’s claims of discrimination, hostile work environment, and retaliation, based largely upon the “extraordinary lengths” to which the employer went to investigate the issues complained of by the employee.
Failure to keep complainant informed of remedial measures may indicate insufficient employer response to harassment.
An employer’s failure to keep an female employee apprised of its response to her complaints of sexual harassment, and its further failure to follow through on remedial actions could lead a reasonable jury to find that the employer did not take the complaints seriously. Such failures form the basis of a recent decision by the 8th U.S. Circuit Court of Appeals in which the Court denied an employer’s post-trial motion regarding a $100,000 jury verdict. Sheriff v. Midwest Health Partners, P.C., 8th Cir., No. 09-3367, August 30, 2010.
Court Emphasizes that Evidence of Training Is a Must.
For over 10 years, employers have been able to avail themselves of an affirmative defense to sexual harassment allegations by an employee against a supervisor/manager in those situations where no tangible adverse employment action has been taken against the employee. This defense is known as the Faragher/Ellerth defense, and can be invoked where the employer can demonstrate that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65 (1998). The vast majority of employers have anti-harassment policies including reporting procedures and protocols for employees to follow, have disseminated those policies and procedures to all employees, and have required employees to acknowledge receipt of the policies. However, the adoption, dissemination and acknowledgment of receipt of the policy by the employee may not be sufficient for employer to invoke the affirmative defense.
Recent Case Underscores Importance of Harassment Training.
A recent decision by the Second Circuit Court of
Appeals (the circuit covering New York, Connecticut,
and Vermont) has underscored the need to provide
periodic harassment training to supervisors to
ensure that they know (and remember!) that they
must take action in response to harassment
complaints, even in the absence of a formal
complaint or details from the complaining employee.
Seventh Circuit Finds Employer's Harassment Complaint Procedures Insufficient.
The federal appellate court with jurisdiction over Illinois employers recently reinstated a lawsuit brought against the owner of a fast food restaurant whose manager allegedly verbally and physically propositioned a 16-year-old employee. According to the Seventh Circuit Court of Appeals, the employee who was later fired by her manager because her mother complained about the harassment could proceed with her retaliation claim. The Seventh Circuit also held that the trial judge had improperly granted summary judgment to the employer on the harassment claim where the record reflected that the employer’s policies were both confusing and ineffective.
Anti-Harassment Measures Help Avoid Liability.
You return from vacation energized to complete the numerous projects sitting on your desk, only to find an employee standing in your doorway asking if she can speak with you about a confidential matter. In your gut, you know your day will be swallowed by what will likely follow from this conversation. The situation takes an uncomfortable turn when you realize the employee wants to lodge a complaint of sexual harassment about one of the company's supervisors.
Employee Who Rejects Employer's Proposed Remedial Action Cannot Pursue Sexual Harassment Lawsuit.
Having an effective policy againt harassment can help stem employee cliams, even where the company does not choose the remedial action the complaining employee requests.
Casual workplace lands restaurant in the hot seat (pdf).
All employers want their employees to get along and feel comfortable while at work. But
when does casual become too casual? While there’s nothing wrong with being comfortable in the
workplace, an atmosphere that’s too relaxed sometimes can lead to behavior that pushes the
envelope. A recent federal court decision serves as a reminder of what can happen when
employees stop being professional and start being “real,” to paraphrase the show that gave
reality TV its start. We also offer a few tips on how to keep your workplace from functioning like
a reality show.
Employers Victorious In Key Title VII Suit (pdf).
The federal appellate court with jurisdiction
over New Jersey recently
dismissed a lawsuit brought by an employee
who complained about sexual
harassment and was later suspended
for herself violating the employer’s
harassment policy. The Third Circuit
Court of Appeals, in an unpublished
decision, held that the employee’s sexual
harassment claim must fail because
effective corrective measures
were taken to remedy the offensive conduct.
Prompt action keeps employer from having its goose cooked (pdf).
As we sit and ponder what we’re all thankful for this year, at least one employer is giving
thanks to its incredible HR department and employment attorney. They developed and enforced a
sexual harassment policy that saved the company from getting sliced up in court like a
Thanksgiving turkey. See how that employer’s prompt and effective action turned the tables on
an employee and made her look like the turkey.
THE CURRENT "HOW TO" OF HARRASMENT RISK MANAGEMENT.
The federal courts, about every five years, indulge an irresistible urge to send attorneys and employers scurrying, and issue a decision or two redefining the parameters of employer liability and responsibility for sexual and other harassment in the workplace.
Discipline Must Be Reasonably Calculated to End Harassment.
The Sixth Circuit U.S. Court of Appeal has ruled that continued misconduct by a supervisor after being disciplined, is actionable. Minnich v. Cooper Farms Inc.
Seventh Circuit Affirms Summary Judgment For Employer On Employee's Gender Discrimination, Hostile Work Environment Sexual Harassment, And Retaliation Claims, Despite No Formal Harassment Policies.
Discusses Hall v. Bodine Electric Company, 8 D.L.R. A-2 (7th Cir., January 11, 2002), in which the court held that the lack of a formal sexual harassment policy was not fatale to employer's defense ("we have never held that Title VII employers must institute formal sexual harassment policies. Instead, we have focused on whether an employer has a reasonable mechanism in place for detecting and correcting harassment.")
Ninth Circuit Reverses $85,000 Jury Verdict.
Discusses Swenson v. Potter, 2001 Daily Journal D.A.R. 12653 (9th Cir., November 30, 2001), in which the court reversed a jury award for harassment, holding that the employer responded adequately to the complaint by separating the complainant from the alleged harasser, and investigating the complaint promptly and thoroughly.
