Employer Discipline Against Sexual Harassers: When Is It Sufficient To Defeat A Lawsuit?

By: Leizer Goldsmith

Have you been sexually harassed on the job? If so, you need to understand that you can only recover damages from your employer if the circumstances of the harassment make the company, and not just the harasser, liable for the harm you have suffered.

Sometimes harassment comes in the form of a “tangible employment action,” such as a refusal to promote if sexual favors are not granted. In such cases, the company or organization is always considered responsible. However, many sexual harassment situations are “hostile environment” cases, where the harm comes from the harasser’s simply making life miserable for the victim. In that type of case, in order to recover from the company, the victim must prove that the harassment was “severe and pervasive” and “unwelcome”. If she can do so, the company can still avoid responsibility by proving that it exercised “reasonable care” to prevent and correct promptly any harassing behavior, and that the victim “unreasonably” failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm.

In practice, reasonable care often requires that the company institute a harassment complaint procedure, and make sure that employees are aware of the procedure and able to access it. In addition, a company is expected to take preventive and/or corrective action once it learns that harassment has occurred. If you are being harassed and your company offers such a procedure, you probably need to attempt to get relief through that system before a court will seriously entertain your case. Note however, that if, as is often the case, the harassment campaign is being conducted by an officer of the company, you may not need to use the internal complaint procedure before complaining to a fair employment practice agency such as the Equal Employment Opportunity Commission, or going to court.

If you’ve been harassed and protested it to the company, and the company has taken some kind of action, how do you determine if the action is enough to satisfy the company’s legal obligations, or if you should file a complaint? That’s a tough question, and there is no single answer. Two recent cases illustrate how different results might occur.

In one recent case, Stuart v. GMC, the United States Court of Appeals for the Eighth Circuit, which handles cases arising in Missouri, Arkansas and other states in the central United States, noted that factors a court should consider in determining whether remedial measures are sufficient include: the amount of time elapsed between the notice of harassment and the remedial action, the options available to the employer to correct the harassment– such as employee training sessions– disciplinary action against the harasser, reprimands in personnel files and terminations. The Court also stated that consideration should be given to whether or not the measures succeeded in ending the harassment.

Another recent case from that same court demonstrates the Eighth Circuit’s practical approach to the issue. In Hubbard v. UPS, the Plaintiff testified that she was a victim of persistent offensive behavior by co-worker . First, the co-worker had thrown things at her. UPS entered a disciplinary notation on his record, and no further throwing occurred. Later, the co-worker pulled out the waist band of his pants in front of Hubbard and a male co-worker. When Hubbard objected, Dallas exposed himself with the comment that he had nothing to hide. The next day, Hubbard met with a UPS and related what had just happened. During the meeting, Hubbard said she did not want the co-worker to lose his job. UPS supervisors promptly met with the co-worker, explained UPS’s sexual harassment policy, and warned him. UPS transferred the co-worker to a location far from Hubbard, noted Hubbard’s allegations in his personnel record, and warned him that further harassment or retaliation against Hubbard would result in his termination. Hubbard testified she had been satisfied with these actions.

Under these circumstances, the Eighth Circuit found UPS’ response sufficient and upheld the judgment for UPS that the trial court had granted.

In another case, Howley v. Town of Stratford, the United States Court of Appeals for the Second Circuit (which covers New York and Conncecticut) came to a different conclusion . In that case, Howley, a female firefighter, was subjected to a cursing, sexually explicit tirade during a public meeting by a lower-ranked firefighter, who later spread false rumors to undermine Howley with subordinates and refused to follow her orders. The town suspended the harasser for two days– five weeks after the event– and recommended that he apologize, which he did not. The Second Circuit found the town’s response insufficient, and ordered that Howley was entitled to a trial to prove her claim of hostile environment sexual harassment.

Howley teaches that just doing something does not excuse the company for harassment conducted by its employees on the job. However, Hubbard shows that a response that is firm, though perhaps short of termination of the harasser, may sometimes be sufficient. If you are being harassed on the job, determining if you can successfully sue your employer depends both on the severity of what you have experienced, and the nature of the company’s response.

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