After High Court Ruling, Firms May Want to Take Long Look at Anti-Harassment Strategies

By Todd Henneman

Jul. 28, 2006

Employers got a new reason to review their harassment prevention strategies when the Supreme Court broadened in most parts of the country what the law deems retaliation against workers who complain about sexual harassment.

    Setting a single national standard, the decision gives employees the right to sue for retaliation taken inside—and outside—the workplace. The nation’s highest court ruled that employees may win retaliation claims under Title VII of the 1964 Civil Rights Acts for subtle reprisals such as being excluded from a training lunch. Previously, lower courts applied a narrower interpretation of what they considered retaliatory, looking for actions such as termination or being passed over for a job.

    Because of the high court’s opinion, anti-harassment trainers should make sure managers understand that after an employee complains of harassment, the person must be included in all of the same lunches, meetings and activities he or she had previously attended, says management attorney Joel W. Rice of Fisher & Phillips’ Chicago office. Otherwise, managers risk being accused of retaliation.

    “Let managers know that if somebody has complained, they shouldn’t be treated different in any respect,” Rice says. “If they were part of the lunch group, they still should be part of the lunch group, unless there is some good business reason why they’ve now been taken off the list.”

    In Burlington Northern and Santa Fe Railway Co. v. White, the case decided in June by the Supreme Court, forklift operator Sheila White had complained of sexual harassment and then was reassigned to the more physical tasks of replacing tracks and cutting brush.

    Within days of complaining about the transfer, she was placed on unpaid leave for insubordination. The company’s internal grievance investigation determined that White had not been insubordinate, and she was reinstated and awarded back pay.

    A federal jury awarded White $43,500. Challenging the verdict, Burlington Northern and Santa Fe Railway, whose name changed in 2005 to BNSF Railway Co., argued that the law requires retaliation to be linked to an employment decision such as termination or denial of a promotion. The Supreme Court rejected the railroad’s reasoning.

    “An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace,” Justice Stephen Breyer wrote for the court. The unpaid suspension and reassignment could deter an employee from filing a discrimination complaint, Breyer wrote.

    The new standard “broadens the number of things that managers need to be careful of,” Rice says, “but the basic message is the same: If people complain, their complaints should be taken seriously because you want to make sure that harassment is not taking place and is routed out.”

    Nancy E. Pritikin, who specializes in employment discrimination and sexual harassment law in the San Francisco office of Littler Mendelson, suggests that companies make sure that their policies explicitly prohibit retaliation.

    “The main message to employers is that once an employee makes a claim under Title VII (of the Civil Rights Act of 1964), employers have to be aware that any action they take is going to be scrutinized,” Pritikin says.

Better education
    The court issued its opinion at a time when several high-profile companies face allegations of sexual harassment, three states are mandating anti-harassment training, and many employers are updating their prevention strategies.

    In May, faced with accusations that an executive assistant received virtually no help after complaining of sexual advances by its chief executive, Toyota Motor North America appointed an independent task force to review its anti-harassment practices, and its CEO retired earlier than planned. In June, computer services firm Keane Inc. announced a $1.14 million settlement with its vice president of marketing, whose allegations of sexual harassment had led to the resignation of CEO Brian Keane. The same month, Wal-Mart Stores Inc. agreed to pay $315,000 to settle two complaints.

    Charges of sexual harassment can cost companies everything from consumer goodwill to big bucks, while simultaneously emptying corner offices. Still, many companies are looking for effective strategies, especially with the stilted videotapes that typified early efforts still lampooned on TV shows like “Saturday Night Live.”

    “By nature, it’s very dry information,” says Chad Melvin, manager of employee learning at Aflac Inc., the Columbus, Georgia-based provider of supplemental health insurance known for its television commercials starring a duck that quacks the company’s name. “The presenter in an instructor-led format makes all the difference in the world. If that instructor can infuse a sense of balance between humor and detail of the concept, it resonates a little more.”

    Next year, Aflac plans to bring back a successful instructor-led course first offered last year to employees at the supervisor level and up. It already offers a follow-up “refresher” course online. And in September, Aflac plans to introduce a man­datory online harassment prevention course for all employees to complement information provided during employee orientation.

    American Electric Power Co., which has 19,600 employees in 11 states, takes a different tack, trying to make hypothetical situations hit home—literally.

    During training, supervisors are asked to imagine that the victim is their sister or daughter. “Once they look at it from that perspective,” says Mary Cofer, director of diversity and culture, “it’s like a light bulb goes off.”

    The utility covers its anti-harassment policies during employee orientation, provides mandatory instructor-led and online training to supervisors and encourages rank-and-file workers to complete an optional online course within six months of joining the company.

“An employer can effectively retaliate against an employee by taking
actions not directly related to his employment or by causing him harm outside the workplace.”
-Justice Stephen Breyer,
writing for the court

    “What we found is that you can stand in front of an audience and quote what the laws say until you turn blue in the face, and it really doesn’t matter,” Cofer says. “You have to make it real to them.”

    Based on that experience, the company retooled its training five years ago. Since then, 98 percent of the training’s graduates have indicated they want similar instruction in the future, the company says, and 80 percent have said they learned from it.

    Chicago attorney Aaron Maduff, who has represented victims of sexual harassment, warns that simply having a training program isn’t enough. He knows of cases where employers offered training but didn’t conduct it at the plaintiff’s location, didn’t ensure employees attended training, or last held it almost a de­cade earlier.

    The educational programs need to be provided often enough that they reach new hires, update veterans on legal changes and remind everyone of the organization’s policies because, he says, “people forget.”

    “When I am advising my clients who are businesses, I want them to have a good policy in place. I want to make sure that the policy is well-publicized, and I want to make sure I have two kinds of training going on: general training for everybody to make sure people are not committing sexual harassment and know how to report it, and training for the HR staff and the supervisors on what to do when they get a report,” says Maduff, a partner with Maduff, Medina and Maduff.

Shifting laws, regulation
    The importance of harassment prevention initiatives resonated with companies when companion 1998 rulings established that training helps employers avoid liability.

   The Supreme Court cases of Burlington Industries v. Ellerth and Faragher v. City of Boca Raton found that employers can be held liable for sexual harassment committed by supervisors, even when victims haven’t reported the offensive behavior. But the rulings also established what’s known as the Ellerth/Faragher affirmative defense. In some cases, employers can avoid liability if they prove that they took steps to prevent harassment and that the harassed employee “unreasonably” failed to use internal means for getting help.

“… You can stand in front of an audience and quote what the laws say until you turn blue in the face, and it really doesn’t matter. You have to make it real to them.”
–Mary Cofer, director of diversity and culture, American Electric Power Co.

    Since those rulings, sexual harassment prevention training has become the norm.

    Nine out of 10 companies have a written policy banning sexual harassment and 64 percent provide anti-discrimination or anti-harassment training, according to a survey of 451 privately held companies in 46 states by the Chubb Corp., a casualty insurance provider.

    California this year began requiring all businesses with 50 or more employees to provide sexual harassment prevention training for supervisors. Connecticut and Maine have similar laws. Other states are expected to follow.

    Still, employers paid $47.9 million last year, excluding payments awarded through litigation, as a result of sexual harassment claims reported to the Equal Employment Opportunity Commission, the agency that enforces federal anti-discrimination laws in the workplace. That’s up from $12.7 million in 1992.

    And offensive sexual remarks continue to be the most common form of ridicule in the workplace, according to an annual survey by the Novations Group, an employee performance consultancy. Thirty-five percent of respondents heard improper sexual remarks last year.

    The EEOC recently decided to increase its investigations into cases that might indicate “systemic” patterns of discrimination within a company, industry, profession or location.

    Accusations of systemic discrimination can lead to larger payouts.

    To settle what the EEOC portrayed as a systemic problem, Cracker Barrel Old Country Store Inc. has agreed to pay $2 million to 51 current and former employees of three of the company’s 535 restaurants after several female and black employees complained of harassment.

    The consent decree calls for Cracker Barrel, which did not admit any wrongdoing, to train employees at those three locations about harassment and report sexual and racial discrimination complaints periodically to the EEOC.

    “We believe that our policies, procedures and actions clearly show that this kind of behavior would not be tolerated in our stores,” according to a statement by Cy Taylor, who retired earlier this month as president and COO of Cracker Barrel. “However, in our never-ending quest to get better at what we do, we plan to use this as an opportunity to improve.”

    The EEOC’s new focus means employers must realize that individual charges of sexual harassment to the EEOC could result in broader and deeper investigations, says Donald Livingston, a partner with the law firm Akin Gump Strauss Hauer & Feld and general counsel of the EEOC from 1990 to 1993.

Common missteps
    New laws, evolving legal interpretations and changing regulatory priorities make it vital for employers to periodically review their policies and practices.

    But when implementing their policies, companies tend to make similar mistakes, says Eli Kantor, an attorney in Beverly Hills, California, who has represented employers.

    One error is investigating a complaint and assuming the problem is resolved without checking back. Kantor recommends that someone from human resources follow up with the accuser a week or two later, even if the employee hasn’t complained again.

    “If you don’t, they’re not going to complain to you,” says Kantor. “The next thing they’ll do is go to the EEOC or file a lawsuit.”

    Another error is not taking a complaint seriously, Kantor says. No law defines how promptly companies must investigate complaints. Kantor suggests that it be handled within a week or two. Maduff, the Chicago attorney, recommends that the investigation start within 24 hours, if possible.

    Despite the legislation and legal rulings pushing harassment prevention training, few independent studies have verified its effectiveness.

    Lisa Keeping, an assistant professor of management and organizational behavior at Wilfrid Laurier University in Waterloo, Ontario, recently completed a meta-analysis of research on sexual harassment education and found that training seems to make a “modest” difference. But Keeping cautions that the conclusion is based on the scant data looking into prevention training’s effectiveness.

    “Companies certainly are spending a lot of money on training, and we really don’t know how effective it is,” Keeping says. “We need more cooperation from more organizations so people doing the research can get in there and work with them.”

Workforce Management, July 31, 2006, pp. 33-35Subscribe Now!

Todd Henneman is a writer based in Los Angeles.

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