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- Stop and Prevent Sexual Harassment

Products and Services to Stop and Prevent Sexual Harassment
from The Employers Association

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The Webb Report Archives 1999

Webb Report Table of Contents

Archives of Webb Reports

THE WEBB REPORT - December 1999

According to the Chicago Tribune, business owners and national human resources experts are saying that the relaxed dress trends have now extended beyond "tacky" and are now leading to serious personnel problems, ranging from sexual harassment lawsuits to lower productivity and declining customer service. As a result, businesses are sending out messages that casual is out, "professional is in, and compliance is mandatory."

The newspaper reported that in the few years since casual Fridays began, the day has evolved into "weeklong casual" and businesses have seen things they would rather not see in the workplace: halter tops, short shorts, Bart Simpson T-shirts.

In a July newsletter to Chicago Board of Trade members, there was little room for doubt:

The following are not considered businesslike attire and are among items which may not be worn:
T-shirts, tank tops, shirts with slogans
Blue jeans, tight-fitting stretch pants, apandex pants
Revealing shirts, dresses, mini-skirts
Shoes with platform soles and backless sandals
Clothing which exposes the body in a manner inappropriate for business
The dress code will be enforced and tickets will be issues. Thank you for your cooperation.

This strict decree from the Board of Trade is one illustration of the retreat from the casual trend, which began with the goal of making people comfortable at work, to make the office a more appealing place and maybe even to make employees happy to be there.

Ann Pasley-Stuart, president of a human resources consulting firm, said "As the dress continues to get more casual, we're finding that the behavior becomes less than ideal. As we dress more casual, our demeanor gets more casual, and work gets less professional. Think about it: when do you see kids behaving best? It's when they are dressed up in their nice Sunday clothes. The better dressed they are, the better they act. It's the same with grown-ups. I guess that principle doesn't change no matter how big we get."

Many experts believe that it is only a matter of time before the casual trend comes full circle and most offices will revert back to being casual only one day per week or banning casual work attire completely. Korn-Ferry International, the nation's largest search firm, spent the summer trying out a five-day-a-week casual dress program at their corporate headquarters in the Sears Tower. Office manager Beverly O'Conner said "We found that instead of dressing as though it were a weekend night out, some people were dressing like it was a trip to the grocery store." So, as of this last fall, Korn-Ferry went back to corporate attire and back to a more strait-laced professionalism. "We just felt it went a step too far," O'Connor said.

Other companies are also implementing new, stricter dress codes. Spring, the Westwood, Kansas-based telephone conglomerate that has also experimented with casual days, recently tightened up on cress restrictions, requiring dress pants, banning jeans, and encouraging employees to dress to that they "put the company's best foot forward." Sprint spokeswoman Cheryl Wilson said, "When you go casual, you learn some lessons...and one of the things you learn is that a little formality is good in a workplace."

Recently, some of the controversy has centered around lawsuits as well. In one case, a receptionist fired from her job at a Chicago securities firm sued the company for sexual harassment after her supervisor complained about her work attire--mini-skirts and low-cut, sheer blouses. In his decision, the judge acknowledged that it was difficult to regulate what constitutes "acceptable" work attire, but ruled in favor of the company, saying it was entitled to ask the receptionist to "seek employment with a more permissive employer."

In a second case in Louisiana, an employee took her company through arbitration to have removed from her personnel file a written complaint that cited her for wearing a Hooters T-shirt to work. She won her case.

However, fear of lawsuits is only a part of the problem. Many companies say that when their workplaces start to look casual, they start to feel and actual casual and that this causes problems.

"The feeling was that customer service was more laid-back, less attentive. Productivity didn't seem to be the same. Some organizations were having to send people home, without pay, because their attire was inappropriate. And at that point we started to put it all together. Casual clothes were translating into casual attitudes. And that wasn't good," according to management expert Pasley-Stuart. She said the corporate complaints had started small, with worries about blue jeans and sleeveless shirts. Then they snowballed into shorts, spandex biking shorts and backless sundresses.

At the opposite end, apparently even casual can get old. At Sears Roebuck and Co.'s headquarters where casual attire is allowed five days a week, one department recently announced they were going to start having "Dress Up Mondays."

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THE WEBB REPORT - November 1999

EEOC Rules City of New York Violated Federal Law

The U. S. EEOC ruled that the City of New York violated federal law when it turned away women who said they were being sexually harassed while working for their public assistance benefits. The women received subsistence benefits only if they worked off the aid in city clerical jobs. The city maintained that the women were not employees and had no legal right to protection from sex discrimination in the workplace. EEOC's legal representative said that federal regulations and court rulings now make it clear that welfare recipients in workfare programs are protected by all anti-discrimination laws to the same extent that other employees are.

The commission's finding came in the case of a homeless mother of two who claimed that her city supervisor in a welfare to work program had pressured her for sex and retaliated against her when she refused. The commission, which found reasonable cause to believe the city subjected the woman to sexual harassment and sex discrimination, has between 5 and 10 similar cases in various stages of investigation, according to agency attorneys.

The welfare recipients in the program are required to work at clerical jobs at the equivalent of minimum wage. New York City, which has the nation's largest work-fare program, with about 40,000 participants, is the only jurisdiction known to be claiming that such workers are not entitled to the protection of federal civil rights laws against sex discrimination in the workplace, according to Yolanda Lu, an attorney with NOW's Legal Defense and Education Fund.

Lorna Goodman, a senior lawyer in the city's Corporation Counsel's office, said "The city does not condone sexual harassment of any kind. If the civil rights laws do not cover these types of workers because they are not legally employees of the city, that does not mean that they have no redress." She said the women could bring private lawsuits against the individuals they say harassed them, or even bring criminal charges of assault in the cases where they say male supervisors groped them sexually.

However, Ellen Vargyas, legal counsel for EEOC in Washington, D.C., said federal regulations and court ruling provide protection for welfare recipients in workfare programs. "It doesn't matter what you call them," she said. "It boils down to 'does the alleged employer control the manner and means of work.' If you have people who are not protected under the laws you do of course fear for exploitation."

The woman in the EEOC case was not named, but in legal papers she said that she was picked out from an orientation session for 50 welfare applicants by the man who later became her supervisor in 1997. Over the first few weeks, she alleges, he made unwanted sexual advances, presses her to go to a motel with him for sex, and said he would arrange for her to be absent from the homeless shelter where she had moved with her 12 year old daughter and 7 year old son. She said that in retaliation for her refusal, she ultimately lost her job and had to fight to keep her welfare benefits.

Another woman with a pending case before the EEOC said that she had complained to two levels of supervisors, to no avail, that her boss at the city's Human Resources Administration grabbed her genitals, demanded sex, stole her time cards and threatened her when she refused his advances. She said "I don't think it's right that the city should treat women who need their help like this. I have nightmares and I still cry when I talk about this, and I'm still very afraid of that man." The 32 year old woman was unemployed and facing eviction when she applied for public assistance in 1997.

In a third case before EEOC, a woman charged that city supervisors ignored her complaints that her boss at another workfare site was pinching her on the buttocks and ribs and putting his hands down her pants. The woman said that she was finally transferred to another assignment, but the city later allowed the same man to follow her there.

According to EEOC, when the commission tried to investigate several sexual harassment complaints, the city refused to cooperate, stating in its legal papers that the commission had no legal authority to look into charges made by public assistance recipients because they were not employees.

EEOC went to federal court in Manhattan to enforce subpoenas for city records connected with three of the cases. The city then argued that supplying the information would violate the confidentiality of the welfare recipients.

City attorney Goodman said "I know it's not a particularly sympathetic position, but this is a legal issue. We have a good faith duty to protect the taxpayer."

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THE WEBB REPORT - September 1999

Employers Quick Response Stopped Harassment and Liability

The U.S. Court of Appeals for the Fifth Circuit ruled that an employer is not liable for a supervisor's alleged sexual harassment because the affected employee "promptly complained" of the behavior and the employer "promptly responded" and disciplined the supervisor. In its ruling, the court affirmed summary judgment for the employer.

The court said that judgment as a matter of law was appropriate in this case, "precisely because the company forestalled the creation of a hostile environment. Such a finding is in line with "Title VII's deterrent policy," the court said.

The female employee of a company that provided services to trade convention exhibitors alleged that the company vice president sexually harassed her by making crude sexual comments and gestures to her and that when she told him he was harassing her he became angry.

She immediately reported the incidents to the human resources director who investigated and relayed his findings to the company president. The president reprimanded the vice president, suspended him without pay for one week, and prohibited him from attending his own department's annual meeting.

When the woman said she was concerned about retaliation, the president met with her and told her of the vice president's discipline, told her she would never have to work with him again, stated in writing that she would not be retaliated against, and offered to pay for counseling.

The woman, who remained in her job, then sued for sex discrimination and harassment, claiming that it caused the reoccurrence of an obsessive-compulsive disorder (pulling her hair), anxiety, and sleeplessness and said that she needed counseling. She did not claim she was harassed again.

The Fifth Circuit differentiated this case from last year's ruling in Faragher and Ellerth. "For purposes of imposing vicarious liability, a case presenting only an incipient hostile environment corrected by prompt remedial action should be distinct from a case in which a company was never called upon to react to a supervisor's protracted or extremely severe acts that created a hostile environment," as alleged in the two Supreme Court cases.

The Supreme Court has set forth a "demanding standard" for establishing a hostile work environment claim, the court said. "incidental, occasional, or merely playful sexual utterances will rarely poison the employee's working conditions to the extent required for liability.

The court said it is a "close question" as to whether the employee's claim can pass this threshold in this case, given that the woman did not experience an adverse action, she was harassed for a brief time, the vice president's remarks were "no more offensive than sexual jokes regularly told on major network television programs," and he never touched her.

However, regardless of the severity of the behavior, it was the employee's own behavior and the employer's response (preventing the alleged hostile work environment from existing) that relieved the company of liability, the court said.

The Fifth Circuit covers Louisiana, Mississippi, and Texas. Indest v. Freeman Decorating Inc., 5th Cir., 1999.

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THE WEBB REPORT - August 1999

Question of Personal Liability for Supervisors Remains Unanswered

When it comes to defining the personal liability of supervisors for acts of discrimination, federal laws a still somewhat unclear. While there is no question that supervisors' discriminatory actions can create liability for their employers, the question of their personal liability remains unanswered.

In a recent case involving allegations of retaliatory behavior, the Sixth Circuit Court of Appeals rejected a lower court's ruling and said that several federal appeals courts have held that personal liability for discrimination is not allowed under Title VII, the Americans With Disabilities Act, or the Rehabilitation Act. The court rejected the argument that while supervisors are not personally liable for discrimination, they can be held liable for acts of retaliation.

The court said that retaliation claims must be examined with a view to the enforcement provisions of Title VII which allow suits against "employers." An employer is defined as "a person...who has [15] or more employees...and any agent of such person," and from this, the court concluded that individuals who are not employers are not personally liable under the Rehabilitation Act. Hiler v. Brown, 6th Cir., No. 98-5014, 5/20/99.

So far, most federal courts have ruled against the idea of personal or individual liability for supervisors' discrimination or retaliation. For example:

Supervisors cannot be sued personally under the ADA or Rehabilitation Act, according to the Tenth Circuit. The court said its ruling corresponds to the ruling by the two other Circuit Courts which have ruled on this issue--the Seventh and the Eleventh Circuits. Butler v. Prairie Village, Kan., 10th Cir., No. 97-3291, 4/6/99.

The Sixth Circuit Court of Appeals ruled that individual supervisors cannot be held liable under Title VII of the 1964 Civil Rights Act, joining the majority of federal appeals courts on this issue. The court said that only the Fourth Circuit has held a supervisor personally liable under Title VII. Wathen v. General Electric Co., 6th Cir., 6/10/97.

In another case, the Wisconsin court of appeals ruled that a company owner can be held individually liable under the ADA. Alberte v. Anew Health Care Services Inc., Wis. Ct. App., No 96-3225, 10/20/998.

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THE WEBB REPORT - July 1999

Supreme Court Holds Schools Responsible for Student-to-Student Sexual Harassment

In May 25, the U.S. Supreme Court ruled that school districts can be liable for damages under federal law for failing to stop a student from sexual harassing another student when the harassment is severe and pervasive. However, in the 5-4 decision, with a majority opinion by Justice Sandra Day O'Connor, the court was bitterly divided over the role of federal law in the public classroom. This was the fifth sexual harassment case the Supreme Court has ruled on in just over a year's time, with only three other rulings between 1986 and 1998.

The ruling exposes school districts to liability for student sexual harassment on basically the same grounds that a Supreme Court decision a year ago set for liability when teachers harass students. In that case decided March 1998, Gebser v. Lago Vista Independent School District, the court said that students can prevail in teacher to student sexual harassment cases when the school districts were aware of the harassment and failed to take action to stop it.

Now in this most recent 1999 ruling, Justice O'Connor wrote, "damages are not available for simple acts of teasing and name-calling among schoolchildren" but rather for behavior "so severe, pervasive, and objectively offensive that it denies its victims the equal access to education" guaranteed under Title IX of the Education Amendments of 1972. In addition, she said, school districts must have known of the harassment and acting with "deliberate indifference," failed to take reasonable steps to stop it.

This decision resolved a dispute among the lower federal courts by overturning a ruling last year by the federal appeals court in Atlanta that Title IX, which forbids sex discrimination in schools and colleges that receive federal funding, simply did not apply to student-to-student harassment. The case will now go back to the appeals court for an application of the test the court set in its ruling. The case was brought by the mother of a girl who complained as a fifth-grader in Forsyth, Georgia that she was subjected to months of sexual advances, taunting and unwanted touching of her breasts and genital area by a boy who was eventually charged and convicted of sexual battery against her. Among other complaints, the girl said that the boy put a door stop in his pants and acted in a sexually suggestive manner toward her in a gym class. According to the suit, teachers and school administrators refused to respond to complaints brought by the mother, Aurelia Davis. They also refused to address the complaints of the girl, LaShona, who sat next to the boy in class and kept pleading to have her seat changed. When she could not concentrate in class, her grades dropped and she eventually wrote a suicide note. The suit asks for $500,000 in damages.

While the Supreme Court did not reach a conclusion on the liability of the Monroe County Board of Education, Justice O'Connor's graphic recital of the details of the harassing behavior made clear that the school district will not have an easy job in defending itself. O'Connor also emphasized that schools have significant control over student discipline, particularly in the classroom. In what was called an "unusually direct rejoinder from the bench" by Linda Greenhouse of The New York Times, O'Connor concluded her announcement of the decision by addressing the dissenting justices, who, she said, maintained that the ruling would "teach little Johnny a perverse lesson in federalism." Rather, she said, the majority believed the decision "assures that little Mary may attend class."

Julie Underwood, general counsel of the National School Boards Association, was supportive of the court's decision. She said that the situation the court was addressing was in a sense "anachronistic" because in the six years since the original lawsuit was filed, "school districts have really worked hard to have policies against sexual harassment and to help children understand sexual harassment." Monroe County had no formal policy at the time the alleged incidents took place.

As interesting as the ruling was the bitter division the decision revealed among the court's justices. What O'Connor described as a statutory weapon against sex discrimination that impairs a victim's ability to learn, was labeled by Justice Anthony Kennedy in his dissenting opinion as an unwarranted federal intrusion into "day-to-day classroom logistics and interactions." Kennedy called it a judicial overreaction to "the routine problems of adolescence."

The majority opinion was joined by Justices Stevens, Souter, Ginsburg and Breyer. Chief Justice Rehnquist joined Kennedy in dissent along with Justices Scalia and Thomas. Justice Kennedy's dissenting opinion was 34 pages--half again as long as the majority opinion. He said that the majority's premise that "sex discrimination" or "sexual harassment" was the proper way to describe what he called at various points "immature, childish behavior" and "inappropriate behavior by children who are just learning to interact with their peers."

According the Times' reporter Greenhouse, "In the workplace context as well as, more recently, in the schools, the court's precedents have treated sexual harassment as a form of sex discrimination. But Kennedy said the court had not taken that analysis too far."

Kennedy said "The norms of the adult workplace that have defined hostile environment sexual harassment are not easily translated to peer relationships in schools where teenage romantic relationships and dating are a part of everyday life." He said that although the majority decision described the test for sexual harassment as narrow and limiting, it was "in fact, so broad that it will support untold numbers of lawyers" and lead courts and juries "to second-guess school administrators in every case." The result would be "a climate of fear that encourages school administrators to label even the most innocuous of childish conduct sexual harassment."

Justice O'Connor replied with a warning saying "We trust that the dissent's characterization of our opinion will not mislead courts to impose more sweeping liability than we read Title IX to require." Davis v. Monroe County Board of Education

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THE WEBB REPORT - June 1999

Justice Department Sues Police Department

The U. S. Department of Justice filed a lawsuit against the city of Belen, New Mexico alleged that its police department created a hostile work environment for female employees. The suit was filed in U. S. District Court in Albuquerque.

The suit alleges that the city violated the 1964 Civil Rights Act by creating and condoning sexual harassment and a sexually hostile work environment. The suit says that the city subjected former Sgt. Terry Piersol to sex discrimination and retaliation when it suspended and then fired her in 1996.

According to a news release, Piersol, who was the only female officer in the department during her time with the department, was fired less than two months after she helped two female dispatchers bring complaints of sexual harassment to former police chief Ray Jaramillo. Jaramillo was demoted in 1996 to lieutenant, following an evaluation of the department that was negative. In August 1996 Lawrence Romero took over as chief.

The lawsuit asks the court for an order preventing the city from subjecting women to sexual harassment and a sexually hostile work environment in the police department. It also asks that the court require the city to investigate and prevent any future occurrences of misconduct. In addition, the Justice Department is asking that the city pay an unspecified amount in damages to Piersol.

City Attorney Raul Sedillo said that to his knowledge, the city had not been served with the lawsuit and he could not comment further.

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THE WEBB REPORT - April 1999

$1 Million Award by Federal Jury

Inadequate policies, procedures and training led to a million dollar loss for two unions and an employer association in a trial held in U.S. District Court in Seattle, Washington in February.

The plaintiff in the case, Jennifer Murray, is a 28-year-old mother of two and a former Seattle longshore worker. In 1997, she filed suit against the International Longshore and Warehouse Union (ILWU) Local 19, the Pacific Maritime Association (PMA), and ILWU Local 98. Local 19 was Murray's union; the PMA is an association of stevedoring and steamship companies that employ longshore workers; and local 98 is a union of foremen that supervisor longshore workers in Washington on behalf of PMA's member companies.

Murray alleged that a continued pattern of sexual harassment by coworkers and supervisors eventually forced her to leave the longshore industry. She said the hostile environment included unwanted touching, lewd comments, sexual propositions and harsh and unfairly critical treatment by foremen based upon her gender.

After eleven days of trial in Federal District Court, the eight-person jury took only five hours to find in Murray's favor, awarding her $750,000 in damages under State and Federal anti-discrimination statutes. Those statutes also require the defendants to pay for Murray's attorney's fees which could be as much as $250,000.

Murray had complained about some, but not all, of the behavior she experienced. ILWU Local 19, acknowledged some of her complaints against one harasser but claimed that it took appropriate action in response to those complaints by talking to the alleged harasser and telling him to stop. Murray testified that the harassment--by that individual as well as others--continued.

The PMA and ILWU Local 98 denied they ever knew about the sexual harassment affecting Murray.

All three defendants claimed that they weren't responsible for any hostile environment that existed on the Seattle waterfront. They pointed to each other, and at the PMA member companies that directly employed longshore workers. They argued that Murray never filed a formal grievance and that, had she done so, her complaints would have been handled by a joint union-management committee, rather than any single defendant.

All the defendants claimed that they took sexual harassment seriously. However, there was substantial evidence to the contrary: Sexual harassment policies were narrow, confusing, and not effectively disseminated. Murray, and other witnesses, had never even seen a sexual harassment policy. The president of the foremen's union testified that foremen did not know what to do when they received sexual harassment complaints. The grievance procedure in the union-management collective bargaining agreement was extremely complicated, formal and public -- not an appropriate forum for investigation and resolution of sexual harassment complaints.

There was evidence that complaints by other women through the years had been trivialized and overlooked. Even where individual incidents of sexual harassment were dealt with, the defendants never looked into the bigger picture to rule out or uncover the kind of systemic sexism that one might expect to exist on the traditionally male-dominated waterfront where women comprise approximately 3% of the unionized longshore workforce.

Finally, sexual harassment training was virtually non-existent. The PMA arranged sexual harassment training for foreman somewhere around the time that Murray left the waterfront. No training had been given by PMA or the unions to rank and file longshore workers or even union officers. Although dispatchers, who are union officers, were acknowledged to be individuals who would likely receive sexual harassment complaints (most of Murray's complaints were to dispatchers), they were never given any sexual harassment training.

The jury awarded Murray $30,000 for pay (lost wages through trial), $70,000 for emotional distress, $250,000 for front pay (future lost wages), and $400,000 in punitive damages. Murray was represented by Steve Connor and Chris Farias of Short Cressman & Burgess. Susan Webb provided expert witness testimony at trial regarding the organizations' responses, policies, grievance procedures, management support, training, handling of complaints, and follow-up and follow-through on incidents and reports of sexual harassment.

This article was contributed by Chris Farias, an employment attorney with the Seattle law firm of Short, Cressman & Burgess.

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THE WEBB REPORT - March 1999

Possible Case of Retaliation

The U. S. Court of Appeals for the Third Circuit held that transferring a woman who is "phobic of critters" from a job tagging and pricing clothing for Goodwill Industries to a job requiring her to sort through clothes dumped into bags could constitute ad adverse job action, and thus reinstated her retaliation claim.

Before she was transferred, the woman complained to Goodwill's sales manager and human resource director about sexual harassment by the manager of the store where she worked, according to court documents. After her complaint, the offending manager was removed from his job, but the woman had her keys to the store taken from her and she was barred from talking on the phone with another employee who had been sympathetic. Additionally, her job was changed from tagger to processor.

A letter from her doctor confirmed the woman's claim that her phobia of "critters--deal or alive that we found in donation bags--mice, insects, bugs" prevented her from performing the new tasks assigned, but she was told to continue as a processor. After trying to do the work, she broke down and took a medical leave. Her supervisor told her that she would still be a processor when she returned to work.

The appeals courts said that the district court erred and that "it is important to take a plaintiff's job-related attributes into account when determining whether a lateral transfer was an adverse employment action." The court also said that retaliation depends in large part on the plaintiff's circumstances. Even though the woman's pay, benefits, and status were not reduced, a "reasonable jury could find that the employee's employment was substantially worsened." To prevail, the court said, the woman must still prove that the transfer was in retaliation for her harassment complaint and that Good will would have forced her to remain in the processor position so as to effect a constructive discharge.

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THE WEBB REPORT - February 1999

Court of Appeals Applies Affirmative Defense Concept

The U. S. Court of Appeals for the Eleventh Circuit ruled that a female storeroom clerk's failure to notify her employer of a co-worker's sexual harassment or to use the employer's avenues for reporting harassment protects the employer from liability for the harassment.

The woman was a forklift operator who was transferred two years later to the storeroom. She worked closely with a co-worker and spent nearly a quarter of her day in his office, according to the court.

In October 1994, she told another co-worker that the man had offered her money for sex, called her at home and left unwelcome romantic messages, and threatened to kidnap her and take her to Arkansas. The person she told, who was also a minister, notified the human resources manager, without naming the parties involved, and agreed to talk with the alleged harasser about his behavior.

Later that same day, at the minister's urging, the woman talked with the human resources manager herself. However, she later repeatedly told the human resources manager that the "situation was fine" even though the harassment continued.

The woman went on medical leave and quit six months later. When she sued the company for hostile environment sexual harassment, the court dismissed the suit without a trial. On appeal, the employer argued that it could not be held liable because of its sexual harassment policy, the manager's manual, and distribution of information about each employee's responsibility to report harassment--which the woman failed to do.

While the Supreme Court ruled in 1998 that employers are vicariously liable for the actions of their supervisory personnel when the supervisor creates a hostile work environment, the Eleventh Circuit ruled that this rationale "applied just as readily in cases where the supervisors fail to act to abate sexual harassment by co-workers."

The Supreme Court also ruled that when an employee suffers no tangible employment action, the employer may raise an affirmative defense by showing that the company "exercised reasonable care to prevent and correct" sexual harassment and that the plaintiff "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

In this case, the woman failed to notify the employer that she was being sexually harassed, the court said, and found that it was not unreasonable for the human resources manager to conclude that the co-worker's talk with the harasser "ended the matter," especially with the woman's reassurances that everything was fine. In addition, two other conversations with supervisors did not change the situation because the woman did not tell them about the harassment.

The court said "When an employer has taken steps, such as promulgating a considered sexual harassment policy, to prevent sexual harassment in the workplace, an employee must provide adequate notice that the employer's directives have been breached so that the employer has the opportunity to address the problem."

Further, the court sympathized with the great "psychological burden" that filing a discrimination complaint places on "one who is already a victim of harassment," but said that the system for correcting problems cannot work "without the cooperation of the victims."

The Eleventh Circuit covers Alabama, Florida, and Georgia. Coates v. Sundor Brands, Inc., 11th Cir., No. 97-9102, 11/13/98.

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THE WEBB REPORT - January 1999

Liability Despite Investigation and Response

A federal district court held that an employer that immediately investigated a female employee's sexual harassment complaint against a manager and who took steps to minimize any further contact between the two, still faces vicarious liability for hostile work environment sexual harassment.

The employee claimed that in June of 1994, an assistant manager at the restaurant at which she worked made unwanted sexual remarks to her and other female employees. She said his behavior escalated to the point of exposing himself to the woman, forcing her to touch his penis, and touching her breast in February 1995.

At that time, on February 10, she complained and the employer took immediate action to investigate the allegations, including confronting the accused harasser within a week. Two hours later, he resigned.

The woman sued the restaurant for hostile environment sexual harassment and the employer asked that the suit be dismissed.

The court pointed out that under Burlington Industries v. Ellerth and Faragher v. Boca Raton, Fla., an employer can avoid vicarious liability for sexual harassment by a supervisor if it can show that it promptly tried to correct the harassment and that the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer." The court said the employer easily met the first prong, but that the question was whether the employee's February 10 report was unreasonably late, and if it was not, the employer failed to meet the second prong of the defense.

Because the assistant manager did not engage in offending behavior between June 1994 and February 1995, the court said, it was not unreasonable for the woman to be silent during this time period. When the sexual harassment became impossible to ignore, however, the woman took immediate action. Thus, the court said, the female employee's actions made it impossible for the company to successfully establish the second prong of the affirmative defense. Cocoran v. Shoney's Colonial, W.D. Va., No 96-0043-C, 10/16/98.

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