When an employee has filed a complaint alleging harassment or other workplace misconduct, you can wind up in a heap of trouble if supervisors ignore company policies in ways that may harm the employee. But you can put some simple procedures in place to help avoid this problem.
Employee Propositioned
Lawana Porter said that shortly after she began working as a correctional officer for the California Department of Corrections (CDC) in 1995, Sgt. Terry Wheeler asked her out. Porter said she declined because she had been instructed not to date supervisors. A few days later, Porter said, Wheeler asked her to accompany him on a trip to Reno, and when she again turned him down, he told her to talk to her “buddy,” Officer Pat Thompson. At the time, Porter was living with Thompson and his wife. Thompson then allegedly told her that Wheeler had promised Thompson a full-time position if Thompson could convince Porter to go on the Reno trip.
Porter filed a sexual harassment complaint with the CDC. As a result of the investigation, Wheeler was told to keep his behavior circumspect toward Porter at work and to attend the next sex harassment prevention class. An “employee counseling record” was placed in his file for three months.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Porter had asked officer Pete DeSantis, president of the local chapter of the California Correctional Peace Officer Association, to represent her when she was interviewed for the investigation. But, Porter alleged, DeSantis responded with a crude sexual remark about how he could make her feel better. He reportedly called her several times, repeated the crude comment, and asked her to accompany him overnight to a union convention. DeSantis only stopped calling, said Porter, when she threatened to tell his wife.
Transfers Blocked
Soon after the investigation concluded, DeSantis became a sergeant in charge of personnel assignment. In 1997 and 1998, he allegedly repeatedly blocked Porter’s transfer to a different watch; even though jobs were posted, DeSantis told her none were available. Also, in a deviation from normal procedures, he unilaterally cancelled a transfer for Porter that another supervisor had approved. And when Porter asked if there were open holidays, DeSantis said, “not for you.”
Complaints Filed
Porter filed another complaint with the CDC in late 1998, for sex harassment and retaliation, but the investigation found her complaints weren’t sustained. Then, after she filed a complaint in 1999 with the U.S. Equal Employment Opportunity Commission (EEOC), Porter was allegedly the victim of ongoing harassment, including being insulted and hung up on by officers.
Porter then sued for sexual harassment and retaliation. The CDC argued Porter’s claims were time-barred because she waited too long to file her EEOC complaint. An employee must file an EEOC complaint within 300 days after the harassment incident, the CDC said.
Did Employee Wait Too Long?
But the U.S. Ninth Circuit Court of Appeals has ruled that Porter didn’t wait too long to file her EEOC complaint and can now take her case to a jury. Even though much of the alleged harassment by Wheeler and DeSantis occurred several years before Porter filed her EEOC complaint, the pattern of behavior continued into the 300-day period before she filed the complaint. The court said that many of these acts were related and thus added up to one illegal employment practice.
Also, ruled the court, even though DeSantis wasn’t a supervisor at the time of his sexual remarks to Porter, the department was liable for his actions under the “quid pro quo” theory of harassment. That’s because when DeSantis later became a supervisor, he abused his position by interfering with her transfer requests. Quid pro quo harassment is when a supervisor conditions a job or benefit on the employee’s acceptance of sexual conduct.
Retaliatory Motive
What’s more, the court said that DeSantis’s failure to follow normal CDC procedures in unilaterally canceling Porter’s transfer provided fuel for her sexual harassment and retaliation claims. Deviating from procedures supports an inference that an action was motivated by discrimination, the court said.
Review Is Key
A key way to help avoid this problem is to have the HR department or a higher-level manager review employment decisions to ensure the action is justified and consistent with company policy and how you’ve handled similar situations in the past. Also, be sure to fully educate managers and supervisors that they are responsible for avoiding harassment and can be held personally liable for harassment.