Here’s a case that will probably make employers feel great about their own compliance efforts. You know who you are: You train your new hires on all company policies, you have sparkling and oft-reviewed nondiscrimination, nonharassment, and nonretaliation policies, you conduct supervisory training early and often, and your folks know how to recognize potentially harassing situations and what to do about them.
On the rare occasion you receive a complaint of discrimination or harassment, you know how to ensure the complaining employee suffers no retaliation and you promptly investigate the claim. You are on your game. This case isn’t about you. Sometimes, though, even when employers don’t do any of those things, they get lucky.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination, sexual harassment, and investigations
Help wanted, sexual favors preferred
Mobile Spine & Rehab on the Loop hired Crystal Kurtts as a receptionist in July 2007. Her direct supervisor was Dr. Johnnie Morgan. We can probably all agree it didn’t turn out to be Kurtts’ dream job.
Just three months later, the doc was sending Kurtts “numerous lewd and sexually offensive text messages at all hours of the day and night,” apparently requesting sexual favors. The doc would stand behind her, rub her shoulders, try to hug her, and tell her she could get a better schedule in exchange for just a few “small favors.” Then one day in November, he turned off the lights and snuck up on her. That was apparently the last straw.
The next day, Kurtts called the clinic administrator and complained about Morgan wanting to “play doctor.” She sent the administrator copies of his text messages and said she no longer felt comfortable working around him. The administrator called her back and asked what she wanted to do and whether she wanted “to be paid [her] last check or what.” The administrator also indicated the clinic wasn’t sure what it was going to do about Morgan but would look into the situation. Kurtts said she would like her last check, and she never looked back.
The administrator later testified in her deposition that there was supposed to be an employee manual in each of the offices, but she couldn’t say where it was kept. She didn’t know if the doctors or any other employees were trained on the clinic’s policies and procedures. Even though she was the right person to call if an employee had a complaint of sexual harassment, she admitted that the manual didn’t list a specific person to call and didn’t give employees a phone number. She herself, in fact, had never received any training on sexual harassment.
Mastering HR: Sexual Harassment
For those of you keeping score at home
OK, to recap: We have a supervisor repeatedly requesting sexual favors and promising some benefit if the subordinate would just play along. We have “proof” of that conduct in the form of text messages. We have a poorly distributed employee manual with weak instructions on how to report harassment.
Further, we have no supervisory or employee training — even for the person who is supposed to handle complaints. And we have a response of “so you want your last check?” when an employee does make a complaint.
Game, set, match to . . . the employer?
Yes, you read that right: The employer won. (The case was dismissed on a pretrial request for judgment; the employee might still appeal.) The court agreed that Kurtts had painted an ugly picture. Without getting into the specifics of the legal procedure, the court found that she had shown a bad work environment existed and it was reasonable for her to have resigned, but it also found that she had failed to give the clinic an opportunity to fix the situation.
What ultimately killed Kurtts’ case was that she complained of harassment and never worked a day after that. In other words, she didn’t give the employer the chance to fix the situation. She also alleged that she was retaliated against for complaining, but the timeline was fatal for that claim, too. Her protected conduct occurred on the same day she resigned, and “there was no time for retaliation to take place,” according to the court.
Mastering HR: Workplace Investigations
Lose-lose case
Even though the employer was successful, this case ultimately may be bad news for everyone; we don’t want the takeaway for employers to be, “Great, I didn’t want to have to worry about all that training and policy updating anyway.” Although we never know the full story in these cases and we have to take the facts as they appear in the record (which, in this case, is the version most favorable to the employee), this appears to be a case in which the employer won in spite of itself.
The reality is, had the proper personnel been trained, had the complaint been handled proactively, and had the reporting instructions been clear, this lawsuit (which was pending in court for a year and a half) might never have happened. Perhaps the doctor would have behaved himself, but even if he hadn’t, Kurtts could have complained, the complaint would have been investigated, remedial measures could have been put into place, Kurtts could have kept her job, and many, many dollars and hours of human capital could have been saved.
What should the takeaways be? First, remember that an employee has a duty to give you a chance to make the situation work. Don’t feel bullied by an employee who wants you to “fire the harasser right now or else.” That wasn’t the exact situation here, but the point remains: The company gets to decide what needs to be done to remedy the situation, and the complaining employee has to give that solution a chance. Second, courts don’t require a perfect working environment. If this employer could win on these facts, imagine how strong your position will be when you do the training, policy-implementation, investigation, and problem-solving work.
Basic Training for Supervisors, easy-to-read guides on employment law for supervisors