Wednesday, April 27, 2011

Harassment Decision Demonstrates Importance of Clear Policies and Training

The federal court of appeals in Richmond issued a decision today which demonstrates the importance of having clear harassment policies and training first level supervisors about reporting harssment complaints. 

The lawsuit, brought by the EEOC (EEOC v. Xerxes Corporation) alleged a racially hostile work environment on behalf of two employees.  The employees say they complained to their supervisor months before the company did anything.  (The supervisor disputed having received any complaints.)  It was clear, that once more senior management learned of the conduct, they took prompt action that was reasonably calculated to end the harassing conduct.

The court of appeals upheld the dismissal of the EEOC's harssament claims for conduct that occurred after management learned of the conduct.  Ironically, this conduct was among the worst of the lot (assuming there are degrees of offensive racial conduct) consisting of anonymous hate-speech (e.g., KKK messages and the "N" word included in a written message) left in the locker of one African-American employees.  The employer promptly and effectively responded to these incidences, the court held, even though it never caught the perpetrator.  The employer called a meeting, threatened to fire the person if caught, and called in the police to investigate. 

The employer's problem was that the employees claimed to have reported to their supervisor a number of racial slurs that were directed at them but it was months before the company took action.  This allegation, the court held, created an issue of fact for the jury over whether the employer had effectively responded to their complaints. 

I don't often get to give advice on how to avoid issues of fact.  An issue of fact isn't discrimination.  There can be all sorts of factual disputes but if a jury believes the employer's testimony, the employer will win.  Factual disputes are only an issue because it is vastly cheaper for the employer to have the discrimination/retaliation claims dismissed prior to a full blown trial.


Here, the employer's policies played into the EEOC's goal of creating a factual dispute.  The court noted, for example, that "Plant employees were instructed to report any violations [i.e., harassing conduct] to their 'supervisor, Plant Manager, . . . or a member of Xerxes’ Compliance Committee.'"  The employer changed the policy (after the employees say the complained to their supervisor) to say that violations must be immediately reported to the supervisor and plant manager.

It would be interesting to see a policy that said harassing conduct must be reported to HR not the supervisor.  I tend to think a court might not look favorably on that policy because supervisors are considered to be agents of the employer.  A policy that says report violations to both is more likely to be enforced if the employee only reports to the supervisor.  Regardless, the safest course, even if not required, is to make sure supervisors are clearly and regularly trained to report up the command chain all reported misconduct. 

Whether or not this avoids an issue of fact, if a case goes to trial, evidence of this kind of training can be used to help convince a jury that no complaints were made to the supervisor.

No comments: