Well-written harassment complaint procedures and policies often make the difference between a successful defense and big-dollar settlements and judgments, says today’s expert.
Tom O’Day, an attorney with the Milwaukee office of Godfrey & Kahn, S.C., says a recent case showed that an inadequate harassment complaint mechanism exposes employers to liability.
Burger King Manager Won’t Stop
In the case, says O’Day, a 16-year-old female Burger King® franchise employee reported sexual harassment after the store manager began making sexual advances and inappropriate solicitations toward her. (It also turned out that the store manager was having sexual relations with several of the other female employees.)
The female employee repeatedly complained to shift managers and supervisors in the store, but to no avail. All the people she complained to reported to the store manager.
Eventually, the worker’s mother visited the store to investigate, and shortly thereafter, the employee was terminated.
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She sued–no surprise–and the first court to hear the case dismissed it, in part because the employee had not taken advantage of the company’s complaint procedure.
It is well settled, says O’Day, that an employer can avoid liability under Title VII for unlawful harassment if the employee fails to use the employer’s reasonable complaint mechanism. That rule, says O’Day, is the reason every employer should have a policy that clearly articulates a complaint mechanism.
However, an appeals court took another look at the Burger King situation. And they noted that when the harasser is a supervisor who terminates or takes other significant employment action against the employee, the company is strictly liable for the harassment. (“Strict liability” generally means that the employee doesn’t have to show fault or intent. Simply establishing the fact of the action is enough to prevail. And also, in a strict liability situation, the defense of “didn’t use the complaint system” won’t work.)
Regular Training the Key
This decision reinforces the importance of having regular antiharassment training sessions for supervisors and employees, O’Day says.
The court’s decision also clarified two particular points regarding complaint mechanisms:
1. The system must be reasonable. Depending on the “employment circumstances,” the system must match the capabilities of the workforce. For example, if most employees do not speak English, a policy distributed only in English would not be reasonable.
2. The system must include a way to bypass a harassing supervisor. Victims of harassment should not be forced to complain to the harassing supervisor themselves.
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What to Do
Take a moment to evaluate your policies now. In particular:
· Does your policy designate at least two routes of complaint, such that all employees have a good alternative that allows them to bypass their boss?
· Is all contact information up to date? Often people leave or go on vacation, organization charts are revamped, or phone numbers change. Make sure all branches of your system work every day.
· Have you published the system and contact information to all employees recently?
· Have you emphasized that there will be no retaliation for making a report?
In the next issue of the Advisor, more sexual harassment tips and an introduction to a new three-way sexual harassment training system.