Legal

You Cannot Afford to Sleep on Harassment Complaints

By Jon Hyman

Feb. 11, 2016

Yesterday, I suggested that harassment prevention is a 365-days-a-year job for employers. Apparently, some employers still need to learn this lesson.
Case in point? Smith v. Rock-Tenn Services, decided yesterday by the 6th Circuit.
The case involved allegations that a male employee sexually harassed a male co-worker. The incidents of harassment included pinching and slapping the plaintiff’s buttocks, and grinding his pelvis into the plaintiff. Based on these facts, and the employer’s inaction following the plaintiff’s complaint, the appellate court had little difficulty concluding that the trial court correctly entered a $300,000 judgment following a jury verdict in the plaintiff’s favor.
What did the court specifically conclude?
 

The harassment was based on sex

Defendant argues that no reasonable jury could find discrimination based on sex because Leonard’s behavior was mere “horseplay” beyond the reach of Title VII.…  [W]e cannot accept this self-serving characterization of Leonard’s behavior. “Horseplay” was much discussed at trial, and the jury apparently found that pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay. 

The harassment created a hostile work environment

We have long held that “harassment involving an element of physical invasion is more severe than harassing comments alone.”… According to Plaintiff, the three incidents between him and Leonard took place over the course of a few months: about a week separated the first and second incidents, and the third incident occurred a month or more after that. Plaintiff described these incidents as escalating from a slap on the rear, to a painful grab on the rear, to grab by the hips and “hunching,” i.e., briefly simulating sex. 

The inadequacy of the employer’s response

Defendant argues that the steps it took were so clearly prompt and appropriate as to entitle it to judgment as a matter of law. Yet Defendant fails to grasp that what it failed to do is just as important.… Defendant did not separate the two men, suspend Leonard pending an investigation, or initiate its investigation in a timely manner; a reasonable jury could find that the failure to take any of these steps or others rendered its response neither prompt nor appropriate in light of what it knew or should have known regarding Leonard’s prior misconduct.

What should you do when an employee complains of harassment? I’ve shared these five steps before, but they are worth repeating.

  1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
  2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
  3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
  4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
  5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.

The employer in Smith v. Rock-Tenn appears to have missed on each of these steps when faced with allegations of clear harassment, and it paid the price. Don’t make the same mistake.

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

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