Harassment Policies and Training: A Critical Line of Defense to Harassment Claims
Most employers are already familiar with the two U.S. Supreme Court decisions that clarified the circumstances under which an employer may be held liable for a hostile work environment based on sexual and other forms of harassment. In Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court ruled that an employer may avoid liability for a supervisor's harassing conduct under certain circumstances by establishing an affirmative defense consisting of two prongs: (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provide by the employer or to avoid harm otherwise. In 2003, federal courts continued to provide guidance as to what an employer must do to satisfy the first prong of the defense and be found to have exercised "reasonable care" to prevent or correct harassment. Some of these recent decisions are summarized below.
Policies and Training Meet the First Prong
Courts have consistently found that in order to satisfy the first prong of the Faragher/Ellerth defense, employers must have anti-discrimination/anti-harassment policies in place and must train their employees about the content of these policies. The risk of not promulgating and communicating such a policy was highlighted by the Court's decision in Boggs v. Die Fliedermaus, No. 99 Civ. 2451 (RWS), 2003 WL 22299315 (S.D.N.Y. Oct. 7, 2003). There, six African-American plaintiffs claimed they were subjected to a racially hostile work environment based in part on discriminatory remarks concerning their race; the employer argued in response that it maintained a racially diverse and tolerant workplace.
The Court in Boggs denied the employer's motion for summary judgment, noting that "at no time during the Plaintiffs' employment did [the employer] distribute an anti-racial harassment policy, conduct sensitivity training, or discipline any of the defendants for racial and sexual misconduct." Relying on the Supreme Court's decision in Ellerth, the Court concluded that, while an anti-discrimination policy is not necessary in every case as a matter of law, the absence of such a policy might contribute to the conclusion that an employer did not take effective remedial action in response to an employee complaint. In such a circumstance, according to the Court, summary judgment for the employer on the basis of the Faragher/Ellerth defense is inappropriate.
When employers have the requisite polices in place and have publicized them among their employees, courts are far more likely to find that the first prong of the affirmative defense has been satisfied. In Reed v. MBNA Marketing Systems, Inc., 333 F.3d 27 (1st Cir. 2003), for example, the Court found that the employer took reasonable precautions to prevent and correct promptly sexual harassment by having a policy against harassment, including a procedure calling for employees to present complaints to the company through two different avenues. The plaintiff admitted attending two orientation sessions on the company's sexual harassment policy. Moreover, the plaintiff conceded that she saw posters regarding sexual harassment in the workplace and knew that she could speak with the personnel department if she believed that she was being subjected to harassment. The plaintiff argued that these policies were not followed in practice, as the company did not take strong enough action when she lodged complaints. In particular, the plaintiff objected to the company's decision to give the accused an opportunity to respond to her allegations before taking corrective action against him. The Court held that giving the accused this opportunity does not show that the company lacked a substantive anti-harassment program, and it further held that the company clearly satisfied the first prong of the affirmative defense.
In Holly D. v. California Institute of Technology , 339 F.3d 1158 (9th Cir. 2003), the Court held that "the legal standard for evaluating an employer's efforts to prevent and correct harassment . . . is not whether any additional steps or measures would have been reasonable if employed, but whether the employer's actions as a whole established a reasonable mechanism for prevention and correction." In that case, the employer had promulgated a written policy that defined prohibited behavior, identified contact personnel, and established procedures to investigate and resolve any claims. The policy was contained in several publications, and the employer conducted periodic training on sexual harassment, which it publicized to staff and faculty by e-mail, including at least one e-mail sent during the same period the plaintiff was allegedly being harassed. The Court found that these measures satisfied the first prong of the affirmative defense, particularly since, the plaintiff testified that she knew about this training, and indeed, that she knew her supervisor's behavior constituted sexual harassment.
Courts across the U.S. have likewise concluded that an employer meets the first prong of the affirmative defense when (among other things) that employer has a well publicized harassment policy. In Kopczyk v. Amphenol Corp., No. 02 C 7132, 2003 WL 22425021 (N.D. Ill. Oct. 23, 2003), the Court found that the employer satisfied the first prong of the Faragher/Ellerth defense because it had for many years posted a sexual harassment policy on a bulletin board in an area open to everyone, and because the employer conducted employee sensitivity/harassment training for all of its employees. Similarly in Payano v. Fordham Treatment CMHC, No. 02 Civ. 5218 (VM), 2003 WL 22410637 (S.D.N.Y. Oct. 22, 2003), the Court found that the employer had exercised reasonable care to prevent harassment because it had an anti-harassment policy addressing discrimination grievance procedures, and because it promptly investigated the plaintiff's complaint. See also Wallace v. San Joaquin County, 58 Fed. Appx. 289 (9th Cir. 2003) (employer met first requirement of the Faragher/Ellerth defense because it had a sexual harassment policy and it promptly investigated employee's complaint).
Policies Must Be More Than Bare Words - They Must Be Effective at Preventing and Correcting Harassment
While the decisions summarized above make clear that it is important for all employers to promulgate harassment-free workplace policies, it is equally clear that the mere publication of such a policy is not necessarily sufficient for an employer to prove that it took "reasonable care;" rather, an employer must also demonstrate that the policy provides an effective means by which harassment may be prevented and corrected. For example, in Soto v. John Morrell & Co., No. C02-4029-MWB, 2003 WL 22290231 ( N.D. Iowa Oct. 6, 2003), the Court found that in order to be effective, an anti-harassment policy must include: "(1) training for the company's supervisors regarding sexual harassment; (2) an express anti-retaliation provision; and (3) multiple complaint channels for reporting the harassing conduct."
The employer in Soto had an anti-harassment policy that expressed the company's strong commitment to providing a harassment-free workplace, had one avenue for complaints, and had an anti-retaliation provision. The employer also displayed posters in two places within the workplace describing the anti-harassment policy, and it distributed to employees on two occasions a memorandum reiterating its anti-harassment policy. However, the Court determined that genuine issues of material fact existed as to the effectiveness of the company's anti-harassment policy because: (1) the company failed to provide any uniform training on the harassment policy and the evidence was ambiguous as to whether all supervisors were actually trained; and (2) the policy provided for only one avenue of complaint (even though employees testified that they knew they could report harassment through alternative avenues).
The employer in Hargrave v. County of Atlantic , 262 F.Supp.2d 393 (D.N.J. 2003), was likewise unable to establish the affirmative defense because, inter alia, it did not provide the Court with any policies against harassment allegedly in place during plaintiff's employment. The employer's failure to offer evidence that it had communicated its anti-harassment policy to supervisors and employees left the Court with "significant questions" regarding the sufficiency of the employer's anti-harassment efforts.
In Homesley v. Freightliner Corp., 61 Fed. Appx. 105 (4th Cir. 2003), the employer instituted anti-harassment policies which provided that an employee who believed she was being sexually harassed should report the harassment to her supervisor or another company representative, and that all formal complaints, informal complaints and rumors of harassment would be investigated. The evidence showed, however, that numerous employee complaints of egregious harassment had been lodged but were ignored, brushed aside and not investigated by the employer. It was not until the company received multiple complaints on the same day that it finally took action. Even after the employer knew of a supervisor's inappropriate behavior, it failed to take significant action against the alleged harasser. The Court found that this evidence, taken together, suggested that despite the existence of policies on paper, the employer had failed to undertake reasonable efforts to prevent or correct harassment as required to avoid liability for harassment under the Faragher/Ellerth defense. See also Hawk v. Americold Logistics, LLC, No. 02-3528, 2003 WL 929221 (E.D.Pa. Mar. 6, 2003) (despite the fact that employer had a well-developed and well-publicized anti-harassment policy, employees attended sexual harassment training and some remedial action was taken, Court found that there was a genuine issue of fact as to whether the employer had met the first prong of the defense because the employer tried to keep the complaint quiet and seemed to condone the harasser's behavior).
Even where an employer establishes that it took reasonable steps to correct alleged harassment (e.g., by demonstrating that it had a sexual harassment policy in place that allowed employees to report potential harassment and that promised careful investigation and appropriate remedial action and prohibited retaliation), an employee may nonetheless rebut this showing by presenting evidence that the policy was ineffective, that the employee had no notice of the policy, or that the employer failed to follow its own procedures. See Breeding v. Cendant Corp., No. 01 Civ. 11563 (GEL), 2003 WL 1907971 (S.D.N.Y. Apr. 17, 2003).
Employers seeking to avoid liability for unlawful harassment by supervisors must undertake a variety of measures to ensure that they can invoke the Faragher/Ellerth affirmative defense. These measures will almost certainly include the following:
implementing and publicizing a harassment policy;
ensuring that the policy defines what constitutes harassment and informs employees where they can lodge complaints;
ensuring that the policy contains an express prohibition against retaliation;
conducting training for supervisors (if not for all employees) concerning the policy; and
conducting training for human resources personnel (and for supervisors, as appropriate) explaining how to handle employee complaints, how to conduct investigations, and how to determine and implement appropriate corrective action.
While it may seem costly and burdensome to undertake all of these measures, an employer's failure to do so may be even more costly, by depriving that employer of the opportunity to obtain the dismissal of hostile environment harassment claims by successfully invoking the Faragher/Ellerth defense .