(September 11, 2008) The 8th Circuit Court of Appeals recently held that the employer’s anti-harassment policy was more than reasonable for purposes of a U.S. Supreme Court-established defense to sexual harassment under Title VII of the federal Civil Rights Act.
In the case of Adams v. O'Reilly Auto., Inc., 2008 U.S. App. LEXIS 17313 (8th Cir., 2008), The court reasoned that the employer had a stated policy of "zero tolerance," requiring investigation and documentation of every report of sexual harassment. The policy was widely disseminated through training videos and handbooks for all new employees as well as posters displayed in all stores. The court also found that there was nothing objectionable in the employer requiring some kind of confirmation of sexual harassment before taking action against alleged harassers. Finally, the employer demonstrated the unreasonableness of the employee's failure to report the supervisor's harassment sooner.
An employee claimed she suffered sexual harassment at the hands of her supervisor for more than two and a half years. She admitted that she never reported his actions to company officials during that time, and that the employer fired the supervisor two days after she eventually made a complaint through the employer's sexual harassment hotline.
The company said it should not be liable for the supervisor’s actions because it exercised reasonable care to avoid harassment and to eliminate it when it might occur, and that the employee did not act with reasonable care to take advantage of the company’s safeguards and otherwise prevent harm that could have been avoided. Under the Ellerth-Faragher defense established by the U.S. Supreme Court, the company must demonstrate that it exercised reasonable care to prevent and correct, promptly, any sexually harassing behavior. It must not only have an anti-harassment policy but show it had distributed it to all employees. This is “compelling proof that an employer exercised reasonable care in preventing and promptly correcting sexual harassment.”
The court found the company’s “zero tolerance” policy regarding harassment required investigation and documentation of every sexual harassment report. The policy contained a complaint procedure with multiple channels for reporting sexual harassment:
“Employees may complain, at their election, to their supervisor, a special anonymous sexual harassment hotline, or the corporate human resources department. Complaints are treated as strictly confidential and employees are reassured that no actions will be taken against them.”
As discovered through testimony, company policy also requires a witness to corroborate the alleged sexual harassment before it takes action against an alleged harasser. The employee claimed this witness corroboration requirement means the policy was not reasonably enforced as required by law because sexual harassment usually occurs surreptitiously. The court disagreed because this “rightly honors the vaunted principle that the burden of proof is on the accuser and it prevents discrimination against those accused of sexual harassment.” The court also found no evidence supporting a claim that the company repeatedly ignored its anti-harassment policy, refuted in part by the company’s swift action in discharging Adams’ harasser which demonstrated the effective implementation of its policy.
The employee also claimed the harassment she suffered was so severe and pervasive that the company must have known about it, but the employee was unable to provide any evidence that the company knew or should have known of the supervisor’s activities. Because the company had a reasonable anti-harassment policy that it properly communicated to its employees and enforced, it exercised reasonable care to prevent and correct sexual harassment. Further, the employee did not utilize the anti-harassment policy for more than two and a half years. As soon as she did the company took immediate corrective action by terminating the supervisor. This created a strong inference that the employee unreasonably delayed her use of the policy.
The California Chamber of Commerce has recommended that employers:
- Have a clear anti-harassment policy, communicate it to all employees, provide all employees with the sexual harassment information sheet, and train all employees — especially supervisors and managers — to recognize and avoid sexual harassment in the workplace.
- Promptly and thoroughly investigate all claims of workplace harassment and take immediate and appropriate corrective action.
- Update employees, post posters and train employees on a regular basis on the company’s anti-harassment policy.
Staff Contact: Jessica Hawthorne