Legal

Examining Voodoo, Jungle Jim’s

By Jon Hyman

Nov. 24, 2015

As a parent of two young children, I can’t say I’m always proud of how I respond to one of my kids complaining about something the other did. “I don’t care who did what. Both of you, knock it off and go to your rooms!” Then again, Title VII does not bind my response as a parent to my child’s complaint like it binds an employer’s response to an employee’s complaint.

Consider the following two examples of workplace harassment.

Example No. 1: Clifford Harris is a practicing member of the Voodoo religion. His co-workers at Electro-Motive Diesel Inc. often expressed their opinion about his religion, calling him “crazy” and describing it as “evil.”

According to court records, the issues came to a head one day when Harris discovered that his co-workers had vandalized his locker: with phrases such as “Resputia” [sic], “Damien,” “Ms. Melodie N Cliff,” “Call me now!!!! Mon,” “Dracula’s locker,” “Transylvanian Whore” and “Voodoo Bitch,” and a caricature of Harris with red eyes and “cartoonish” moles — corresponding to where Harris actually has moles — a drawing of a snake, a drawing of a horned animal head and a pentagram. Harris was also distressed to find a fluid-filled condom attached to the lock.

When Harris complained, his employer quickly and decisively responded. The graffiti and the condom were removed. The employer warned employees in writing that such harassing or threatening behavior would be punished, possibly with termination, and implemented a policy of regular supervisor locker room checks. By Harris’ own admission, there were no more incidents of vandalism.

Example No. 2: Dana Ellis, an employee at Jungle Jim’s International Market Inc. in Ohio, suffered daily harassment from her supervisor, including him unzipping his pants and asking her to take a look, telling her he wanted to “bend [her] over and BF” her, sticking out his tongue and simulating licking her, and asking her what positions she likes to have sex in and if she likes oral sex, according to court records.

While those allegations are bad, the company’s response was even worse. When Ellis’ co-workers complained to the store manager, Kathy Dick (really her name), about the harassment, she merely provided the supervisor a warning and kept the employees working together.

I hope that it does not surprise anyone that the employer won its case in Example No. 1 and lost in Example No. 2. Let’s examine why.

There is a difference, legally speaking, between harassment and Harassment. There is no doubt that all of the conduct alleged in each example was offensive and targeted at the employee’s protected class (Harris’ Voodoo religion and Ellis’ gender). The difference, however, lies in each employer’s response.

In the first example, within four days of the employee’s internal complaint, the employer warned Harris’ co-workers to knock it off … and the harassment stopped. Case closed.

In the second example, the employer failed to train any of its employees, including its managers and supervisors, on its sexual harassment policy, and the store manager received no training (other than being provided a couple of books to read) about how to respond to or investigate harassment complaints. As a result, she kept the employees together and Ellis continued to suffer harassment after her complaint.

What do these examples teach us about our anti-harassment programs? Merely having a policy is not enough. If you do not train your supervisors, managers and others in how to respond to workplace harassment, you will have a difficult time avoiding liability when things go wrong.

Anti-harassment training should be part of your onboarding process for all employees. It does not have to be a deep dive on every nook and cranny of U.S. workplace harassment law for each hire (although that would be best). At a minimum, however, you should have someone knowledgeable about harassment and your policy against it sit down with each new hire, explain your anti-harassment policy and offer the opportunity to answer questions.

That, plus comprehensive annual harassment training for all employees, should mitigate against a court finding that you failed to actively implement your policy or train your employees and supervisors on it — a finding that could prove fatal to your defense and costly to your bottom line.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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