I read this and my jaw dropped. A supervisor sexually harassed two different employees, admitted to doing so and the company won the lawsuit? How is this possible? Oh yeah, it wasn’t in California. Even so, this is a remarkable a turn for employers.
The case is very well encapsulated in this email that I received from Fair Measures:
Company wins harassment case after supervisor repeatedly exposes himself
– By Rita Risser, attorney at lawYou might think that a company with a supervisor who exposes himself repeatedly to two different women would be found liable for sexual harassment. But in a recent federal Court of Appeals decision, a company won because it had an effective anti-harassment policy, procedure and training.
The policy provided that employees could report harassment to any supervisor. It did not require they follow a chain of command. It required supervisors to report all incidents of harassment. The policy prohibited retaliation. It provided that an investigation would be conducted, it would be kept as confidential as possible, and that employees would be reassigned if necessary during the investigation.
Supervisors received anti-harassment training. Training in the policy and complaint procedure was required for all new employees. The women who were victims in this case attended the training. They admitted that they knew there was a procedure for reporting sexual harassment. However, one of the women never filed a complaint with the employer. The first time the employer knew she had been harassed was upon the filing of this lawsuit. The other woman revealed the harassment while being questioned in the investigation of another incident. She quit a few days later, while the employer’s investigation of her allegations was on-going.
The women argued they were afraid to file complaints. They did not allege any objective evidence that the man had threatened them. Instead, they had subjective fears of confrontation. The Court of Appeals held that despite these fears, the women had a duty to follow the employer’s procedure. Since they did not, they could not sue the employer for harassment. The employer won.
Does this mean that HR professionals can breathe a sigh of relief? Well, just a little one…but then we have to suck it up again.
It’s hard to tell if the tides are turning or if this decision is an anomaly. Either way, HR professionals put in a great deal of hard work in order to get effective sexual harassment avoidance training out to employees, to put equitable harassment reporting policies and procedures in place, to make sure that all employees are aware of their rights to report and to ensure all managers are aware of their responsibility to report any suspicion of harassment immediately to HR.
It’s nice to know at least someone noticed.