Your chances of successfully defending yourself against harassment claims may be only as good as your company’s policy manual, according to a recent Ninth Circuit Court of Appeals ruling.
This case is one of the first decisions in California involving the so-called “Faragher defense,” which is based on a U.S. Supreme Court decision allowing employers to avoid liability for a supervisor’s misconduct in some circumstances.
Clinic Workers Subject To Hostile Acts
Three female employees of the Central Valley-based Dinuba Medical Clinic claimed that the actions of clinic administrator John Moore created a hostile work environment. Elva Marquez, Maria Montemayor and Eva Flores said Moore groped his groin in their presence, engaged in sexually charged bodily contact with them, and repeatedly made offensive sexual comments and jokes. When Marquez filed a criminal assault charge against Moore, she was immediately fired.
Marquez sued the clinic for retaliation and, with her two co-workers and the help of the Equal Employment Opportunity Commission, sought damages for sexual harassment. A jury sided with the workers, ordering the clinic to pay a total of $100,000 to the three women.
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Employer Invokes Defense
The clinic appealed, contending the U.S. Supreme Court Faragher rule shielded it from liability. In a 1998 case, the high court ruled that an employer is not liable for sexual harassment by a supervisor if the employer can prove: 1) the harassment did not result in any negative employment action against the employee; 2) the employer had an anti-harassment policy that set out specific procedures for employees to use when making complaints; and 3) the complaining employee failed to take advantage of the procedure.
The clinic argued that the Faragher rule should apply because the women didn’t make written complaints as required by the clinic’s policy and procedure manual. The clinic admitted, however, that the women complained verbally to supervisors about Moore’s alleged offensive behavior.
Workers Complied With Procedure
The federal appeals court ruled that the jury was justified in finding the clinic responsible. It said that, contrary to the clinic’s assertion, the policy manual did not require that complaints be written. The court went on to conclude that the workers had followed their employer’s grievance procedure “to the letter.”
Effective Policy Is Important Protection
The Faragher rule can be a valuable defense in federal as well as state court cases involving claims of harassment by a supervisor. But to make use of it you must have a clear complaint procedure that lays out the steps for reporting harassment incidents. And you need to be able to show that you exercised reasonable care to prevent and correct the offending behavior once you learned about it.
Be sure to communicate your anti-harassment policy to all employees and identify the individuals responsible for investigating charges. And, note that even if your policy requires complaints to be made in writing, you are still obligated to respond to harassment incidents that are reported orally.