A recent Federal case was recently decided that confirms that employers need to have an effective complaint procedure in place to investigate complaints of harassment. At a minimum it may help to reduce your liability if you are proactive instead of reactive to such matters. This particular employee apparently had an air-tight case of sexual harassment but sabotaged herself because she did not avail herself of the company’s complaint procedure.
The court in its decision pointed out to key points. One, the employer had a policy banning harassment and an effective mechanism for handling complaints, and second, the victim in this case refused to cooperate in the investigation. Here are the facts.
The employee was hired after a manager saw her at a fast food restaurant and thought she looked like Farrah Fawcett. She went to work starting as a cashier, and worked her way up to Assistant Manager. For most of the time she was there, she did not report to the manager who recruited her initially, but that didn’t stop him (allegedly) from being extremely crude and disgusting on a regular basis.
The company had a policy prohibiting sexual harassment and a hotline number for employees to use to make complaints. The employee called the hotline and made an anonymous tip about the sleazy manager. The company sent a representative to investigate, but the employee was not at work when the investigator came, and because her tip was anonymous, nobody knew to contact her. Meanwhile, she, (the employee) knew that the representative was investigating her complaint and made no effort to get in touch with him.
At the end of the investigation, even without the employee’s help, the manager was reprimanded.
The employee claimed that she had complained to her boss about the manager, and in response the manager brought a district manager in to conduct another investigation. However, when the district manager was on site, the female employee was on medical leave and did not contact him. To make matters worse, she advised a female co-worker, who had a notebook documenting the manager’s alleged harassment, not to share her notebook with the district manager.
According to the U.S. Supreme Court, an employer will not be liable for harassment by a supervisor under Title VII if the harassment does not result in a “tangible job detriment,” and (1) the employer has effective measures in place to prevent harassment and correct it if it occurs, and (2) the employee unreasonably fails to make use of the employer’s remedial measures.
This was a big win for the employer. The federal court granted summary judgment to the employer. First, the court found that the manager’s conduct could very well have been considered sexually harassing. However, the court found that the employer had both a policy prohibiting workplace harassment and an effective mechanism for making complaints. The court also found that the company had conducted “reasonable” follow-up on the employee’s complaints.
Finally, the court found the employee had failed to avail herself of the employer’s remedial measures by failing to present herself for interviews during the two investigations and instructing her co-worker not to provide her notes to the investigator.
The takeaways here are simple. One, have a procedure in place to handle complaints. Second, do not ignore the complaint. Third, conduct an investigation. Fourth, act on the results of the investigation whether it be a warning (written), a suspension, or termination. Finally, if the complaining party refuses to participate, or impedes the investigator in any manner make sure it is well documented.