The Seventh Circuit Court of Appeals recently decided a case involving an employer’s harassment complaint mechanism and found that it was wholly inadequate – opening the employer up to liability for the harassing actions of their employees. The case serves as a reminder to employers to regularly update their anti-harassment policies in 2008.
Background
A 16-year-old female Burger King franchise employee reported sexual harassment in the workplace after the store manager began making sexual advances and inappropriate solicitations. The store manager was also having sexual relations with several of the other female employees.
The female employee repeatedly complained about the harassment to other shift managers and supervisors in the store, all of whom were subordinate to the store manager. After several failed attempts to obtain help, the female employee’s mother visited the store to complain about the harassment. As a result of these actions, the female employee was summarily terminated.
The federal district court in Milwaukee dismissed the sexual harassment claim based in part because the female employee had not invoked the company’s procedure for complaining about harassment. It is well-settled that an employer can avoid liability under Title VII of the Civil Rights Act for unlawful harassment if the employee fails to invoke an employer’s reasonable complaint mechanism by which the employee can obtain relief. That rule, which comes from a pair of Supreme Court cases, is the reason every employer should have an unlawful harassment policy that clearly articulates a complaint mechanism by which employees can seek relief.
The appellate court noted, however, that when the harasser is a supervisor and the supervisor terminates or takes other significant employment action against the employee, the company is strictly liable for the harassment. Regardless of the complaint mechanism and whether the employee invoked the process, the company is liable for the supervisor’s harassing acts. This fact reinforces the importance of having regular unlawful harassment training sessions for both supervisors and employees.
Policy review
While the court did not move away from settled law regarding sexual harassment, it did clarify a number of points that demand a review of employers’ anti-harassment policies in 2008. The court noted that complaint mechanisms:
1. Must be reasonable, depending on the “employment circumstances,” and must match the capabilities of a particular workforce. For example, if most or all of your employees do not speak English, a policy written only in English is not reasonable.
In addition, if a workforce is comprised of mostly teenagers, the company is obligated to suit its procedures to the understanding of an average teenager. The court was careful, however, to make clear that a policy need not be tailored to each individual employee, but to the collective “circumstances” of the entire workforce. If you have only one employee who does not speak English, the law does not require the policy be tailored to that individual employee (though it may be good practice to do so anyway).
2. Must include a way to bypass a harassing supervisor. If a supervisor commits harassment and terminates or takes significant action against the harassed employee, the company is strictly liable. An employee is still expected to follow the complaint mechanism. Victims of harassment should not be forced to complain to the harassing supervisor themselves. Policies that do not provide ways to complain to someone other than a harassing supervisor will not protect companies in the event of unlawful harassment claims. All unlawful harassment policies should include a bypass mechanism with two or more individuals to whom complaints may be directed.
The most effective way for employers to avoid unlawful harassment claims is to provide unlawful harassment training for all employees and all supervisors. The new calendar year offers a reason to invest in unlawful harassment training for your company. In addition, employers should use the new year as an excuse to review and update anti-harassment policies. The case described above provides direction with respect to the elements of an anti-harassment policy that are necessary to protect your company against future claims.
