Recent Court Rulings Highlight the Importance of Prompt and Proportionate Response to Harassment Complaints
We often counsel our clients on the need to respond promptly and effectively to employee complaints of harassment, and two recent federal appellate court rulings confirm the importance of doing so.
Employer Conducted Immediate Investigation and Took Action to Stop Additional Harassment
In Tucker v. United Parcel Service, Inc., a female UPS supervisor complained that a male subordinate engaged in sexually inappropriate behavior, including touching. Following an investigation, during which the employee was suspended, the employer could not determine if his behavior was intentional. The employee was permitted to return to work, but was counseled on workplace policies on professionalism and harassment, and was further prohibited from the supervisor’s work area. Although he never interacted with the supervisor thereafter, she nonetheless complained that she felt unsafe because he stared at her. The employer provided her with an escort to her car and offered her a transfer to another facility nearby or a different shift, which she refused. She asked that the employee be transferred instead, but the employer explained that the union would not allow it. She subsequently demanded that the employee be removed from the facility. She then resigned and filed suit.
The U.S. Court of Appeals for the Fifth Circuit held that the employer was not liable under Title VII because it took immediate action once it received the supervisor’s complaint. The employee was suspended during the investigation, and then subsequently counseled on workplace policies and instructed to stay away from the supervisor’s work area, and the employer also provided an escort for the supervisor. This was sufficient to stop any future harassment, which is what is required by the law, and it was not necessary to terminate the employee, as the supervisor demanded.
Employer Implemented and Enforced Comprehensive Anti-Discrimination Policy
In Wilcox v. Corrections Corp. of America, a female corrections officer complained that a male co-worker inappropriately hugged and touched her, and made sexual comments. The employer immediately directed the co-worker to stay away from the employee, after which he never touched her or made inappropriate comments. It also hired an outside investigator, who determined that the co-worker had engaged in sexual harassment of the employee and others. The co-worker was then fired. The employee sued for sexual harassment and a jury awarded her over $100,000; however, the trial court overturned the jury verdict and found for the employer.
On appeal, the U.S. Court of Appeals for the Eleventh Circuit upheld the trial court’s determination that the employer’s prompt and effective response to the complaint barred liability under Title VII. The employer had implemented a comprehensive anti-discrimination policy and ensured that employees were aware of it. In addition, the court found that the employer had enforced the policy by counseling the co-worker, investigating him, and then terminating him. These actions prevented recurrence of the harassment once the employer became aware of it.
Lessons for Employers
Some helpful guidance can be drawn from these two cases. It is important for employers to implement a detailed anti-discrimination and anti-harassment policy. It is also important to ensure that employees are made aware of the policy. Then, if there are complaints, employers must respond promptly, with a thorough and unbiased investigation. At the conclusion of the investigation, it is necessary to take steps to ensure that any harassment will not continue to occur – which does not always require the termination of the alleged wrongdoer, even if that is what the alleged victim wants. The legal obligation is to stop the harassment. An employer who takes these steps will likely be able to avoid liability for co-worker harassment and will also encourage a harassment-free workplace.