On June 25, 2018, the 11th Circuit held that a district court did not err in rejecting a jury verdict in favor of an employee on her sexual harassment claim and granting judgment in the employer’s favor. After all, the employer took prompt remedial action by immediately instructing the alleged harasser to stay away from the employee, investigating the complaint, and then firing the accused six weeks later when an independent investigation found that he committed the harassment. This article explains the court’s reasoning about why firing the harasser after a six-week investigation was deemed “prompt” enough to prevent employer liability.
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Facts
Felicia Wilcox was a corrections officer working for Corrections Corporation of America (CCA). On July 10, 2009, coworker Larry Jackson slapped her on the buttocks twice. That same day, she filed a complaint with her employer. In response, CCA instructed Jackson to stay away from Wilcox and retained an outside investigator to look into her complaint.
In the days following her complaint, Jackson repeatedly rolled his eyes at Wilcox and once punched a metal machine in her presence to intimidate her. On July 23, 2009, she submitted a second complaint, adding that she was afraid Wilcox would touch her again, that this was not the first time he had touched her, and that he had told her he could touch her anytime he wanted.
When interviewed on August 27, Wilcox conceded that Jackson never touched her or made any inappropriate comments to her after her July 10 complaint. She also described two earlier incidents of inappropriate conduct and sexual comments. On September 9, the investigator submitted a report finding that Jackson had sexually harassed Wilcox and other coworkers. On September 14, CCA fired him.
Sexual Harassment Suit
Wilcox filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) as well as a lawsuit against CCA for sexual harassment under Title VII of the Civil Rights Act of 1964. At trial, she testified she had complained to the company that her coworker had sexually harassed her but that the company failed to take prompt remedial action.
The jury found in Wilcox’s favor and awarded her $4,000 in compensatory damages and $100,000 in punitive damages, but the district court overturned the jury verdict and ruled in CCA’s favor. She appealed and argued that the jury was entitled to find that the employer failed to act promptly on her complaint. The court affirmed, however, because CCA remedied the harassment promptly and there was no recurrence.
Burden of Proof
To prevail in a lawsuit against the employer for a coworker’s sexual harassment that resulted in a hostile work environment, an employee must prove five elements:
- She belongs to a protected group;
- She was subjected to unwelcome sexual harassment;
- The harassment was based on sex;
- It was severe or pervasive enough to alter her terms and conditions of employment; and
- It’s a basis for holding the employer liable.
Only the fifth element was at issue in this case.
Knowledge
When the harasser isn’t the employee’s supervisor, the employer will be held directly liable only if it knew or should have known of the harassing conduct but failed to take prompt remedial action. Here, the 11th Circuit found no evidence supporting Wilcox’s argument that CCA should have known about the harassment before her first report on July 10, when Jackson smacked her on the buttocks. She claimed the company should have known about additional harassment involving the inappropriate hugging of her female coworkers. She testified, however, that she never reported the hugging, and the other evidence of hugging in the record did not support the inference that it was widespread or that others considered it offensive.
The court also found that even if CCA had constructive knowledge of the harassment, it was insulated from liability because it had adopted an antidiscrimination policy that was comprehensive, well-known to employees, vigorously enforced, and stocked with alternate avenues of redress. Although Wilcox argued that the policy wasn’t vigorously enforced, the court found it was properly enforced—given that the alleged harasser was admonished, investigated, and then terminated.
Effective and Prompt Remedial Action
Because CCA’s actions prevented recurrence of the harassment it knew about, the 11th Circuit found the company’s action was effective and that a “reasonable jury would not have a legally sufficient evidentiary basis to find otherwise.” Jackson never touched Wilcox after her July 10 complaint, notwithstanding her fear that he might do so.
The remaining issue in the case was whether CCA’s action was sufficiently prompt. Although there is no clear rule for promptness, the 11th Circuit held that the company ordered Jackson not to be around Wilcox immediately after her first complaint and then fired him two weeks after the investigator interviewed her and learned of her other complaints against him.
Wilcox argued that six weeks between her first complaint and the investigator’s interview was too long. The 11th Circuit disagreed, finding that “there were a lot of moving parts in the company’s investigation, and each of those workings took time.” For example, both of Wilcox’s written complaints had to be examined internally and then referred out to the company’s ethics office, other employees’ allegations had to be investigated, and another investigator had to be brought in from out of state to interview 16 employees.
Based on the facts that culminated in Jackson’s termination, the 11th Circuit decided that no reasonable jury would find CCA had failed to act promptly. Consequently, the employer was found not liable. Wilcox v. Corrections Corporation of America, No. 14-11258 (11th Cir., June 25, 2018).
Lessons Learned
It’s important for Florida employers to implement antiharassment policies with comprehensive complaint procedures, conduct training so employees are aware of the standards, respond promptly to complaints by conducting thorough investigations, and take appropriate and effective remedial action designed to stop the conduct.
Although the court found the six-week gap between Wilcox’s initial complaint and the ultimate termination to be a “prompt” response, you should not assume that this period of time will always be deemed sufficiently prompt. The court’s holding in this case was very fact-specific, and CCA had a good explanation for why the investigation took six weeks. Therefore, you’d be well-advised to document your good-faith basis for any delays when conducting harassment investigations to ensure you can meet the test for promptness.
Navigating sexual harassment can be a real challenge. Join us in October at HR Comply California, for a session entitled “Sexual Harassment: Rethinking Prevention in the Wake of the #MeToo Movement,” given by Rebecca A. Speer, Esq., Tribu Partners LLP. Current methods of sexual harassment prevention are not working well enough. Speer shows how we can make some critical changes to address that problem.
You may contact Lisa Berg at lberg@stearnsweaver.com.