Tag Archives: Harassment

Employer’s Prompt Investigation and Action Prevents Liability For Retaliation and Co-Worker Harassment Claims

Contributed by Jon Hoag

Once again, the court has reiterated that employers can avoid liability by promptly investigating and remedying claims of harassment.  In Jensen v. Styrolution Am. LLC, Judge Guzman of the Northern District of Illinois dismissed a retaliation and harassment complaint against the employer based on proof that the employer took prompt remedial action when it learned about allegations of harassment.

Jensen claimed that he was harassed by a male co-worker, Hefele.  Jensen reported the incidents to his immediate supervisor, who intervened.  Jensen admitted that the harassment would stop for a while, but he claimed it would eventually continue.  Jensen complained to his immediate supervisor when the harassment began to escalate and the complaint was communicated to upper management and human resources.  Human resources conducted an investigation and determined that both individuals had violated the company’s policies.  After the investigation, the employees were assigned to work different shifts and did not have any further dealings or interactions.  There were no further complaints of harassment. 

The court found that the employer properly intervened and took reasonable measures to put a stop to the harassment.  When the harassment picked back up and escalated, the supervisor reported the matter to upper management.  Most importantly, the employer conducted an investigation and took remedial action.  The court stressed that a prompt investigation is the hallmark of reasonable corrective action.  Furthermore, the employer’s findings through its investigation showed that the employer’s reason for terminating Jensen – violation of company policy – was honest.  As such, Jensen could not establish that he was retaliated against for complaining about harassment.

The courts do not require employers to make wise, accurate and well-considered decisions to avoid liability when making adverse employment decisions (although it doesn’t hurt).  The courts will look to see if the employer conducted a prompt and reasonable investigation to show that the employer’s lawful reason for the adverse action was honest.

What’s In A Word? Seventh Circuit Determines That the Word “Bitch” May Constitute Title VII Sexual Harassment, Though Context Is Key

Contributed by Carly Zuba

It goes without saying that employers should be strictly prohibiting name-calling in the workplace – such behavior undermines employee self-confidence and morale, which can then result in a lack of productivity.  But if that isn’t reason enough, employers should take a look at the recent Seventh Circuit case of Passananti v. Cook County (7th Cir., No. 11-1182, 7/20/12).  This decision provides employers with yet another compelling reason to forbid name-calling: gender-based name-calling and epithets can result in costly sexual harassment claims for employers.

In this case, Passananti filed a sexual harassment and hostile work environment suit against her former employer, Cook County.  She alleged that her immediate supervisor repeatedly called her a “bitch” in front of other employees, constantly yelled at her and belittled her authority.  Additionally, she claimed that the supervisor falsely accused her of tampering with an inmate’s urine sample and of having sexual relations with another inmate.  The case went to trial and the jury returned a $4.1 million judgment for Passananti against the county.

The Northern District of Illinois, however, did not agree with the jury’s sentiments and granted the county’s post-trial motion for judgment as a matter of law. The court recognized that the supervisor’s statements were vulgar and rude, but relied on a line of Seventh Circuit cases in deciding that the use of a gender-specific derogatory name (e.g. “bitch”) does not, by itself, constitute sexual harassment. 

Story’s not over, folks.  Along comes the Seventh Circuit, deciding to reinstate the harassment verdict. In so doing, the court reasoned that a reasonable jury could in fact find that the supervisor’s repeated, hostile use of the word “bitch” indicates that the alleged harassment occurred “because of” sex.  Notably, the Seventh Circuit focused on context – the supervisor’s other conduct, including his false accusation that Passananti was engaging in sex with an inmate, gave the jury ample reason to infer that his use of “bitch” occurred on account of Passananti’s gender. 

It is important to note that despite this decision, the Seventh Circuit reaffirmed previous cases in which it found that the repeated use of “bitch” in the workplace does not automatically constitute sexual harassment – the court acknowledged that although “bitch” is a gender-specific word, it does not always mean that the word is being used to target someone’s gender.

And now for the coveted takeaway: Employers, in conducting internal investigations, ensure that you are investigating not only the core of any alleged verbal harassment (i.e. what was actually said), but also the context of that harassment.  It is important that you ask about the alleged harasser’s tone, demeanor and other behavior in determining whether harassment actually occurred.

Horseplay In The Workforce Ain’t What It Used To Be And It Could End Up Costing You Big Bucks!

Contributed by Heather Bailey

A Louisiana jury was correct when it found that a survey crew instrument man at an engineering firm was sexually harassed by his supervisor’s boss who happened to be a male as well.  Cherry v. Shaw Coastal, Inc., 5th Cir., No. 11-30403, 1/19/12.  The harasser started off by brushing the employee’s hair, then he would ask the employee to take his shirt off and to wear revealing clothing.  The behavior escalated to inappropriate sexual text messages, repeated touching of the body and hair, and an invitation to sleep over and wear his underwear.  There was one occasion where the harasser touched the employee on the buttocks.  During this time, the employee repeatedly told the manager that he was uncomfortable and that the manager should keep his comments to himself.  

The employee’s supervisor knew his boss was acting inappropriately and complained twice to two different managers who were overseeing the project they were all working on together.  Nothing was done and the managers never informed human resources of the complaints.  After the third compliant when the employee finally complained to the same management team, the manager questioned that the harasser’s conduct was probably just “horsing around.”  After yet another complaint, management finally removed the employees from working on the same crew.  However, the harasser was still able to make the employee feel uncomfortable so he escalated his complaint.  Finally, management informed human resources, but not before questioning the conduct was just “horsing around” again.

Human resources conducted an investigation yet concluded the issue was one word against the other and took no further action.  Again, the company took no further action when the employee complained the harasser was then retaliating against him for complaining.  The employee then resigned because the company failed to take any action and he could no longer take the harasser’s treatment.

The court said the jury was right that there was same-sex harassment here based upon the manager’s vulgar sexual text messages which propositioned the employee, an offer to stay at his house and wear his underwear, and the repeated offensive physical touching and caressing which included a single instance on the buttock.  The court said all of this conduct was “severe and pervasive,” which is a test for proving sexual harassment.  

The lesson learned here is that the company was liable due to its failure to take prompt remedial action. It had a policy that required management to report any complaint to human resources, but management didn’t follow that policy here and even suggested that the inappropriate conduct was just horseplay.  When management finally followed the policy, human resources – despite having documented proof and a superior as an eye witness — did nothing. 

Spring Cleaning Tips

  • Update the company’s Anti-Harassment and Discrimination Policies, and if you don’t have one to update, create one immediately!
  • Train all employees on the do’s and don’t’s of sexual harassment and discrimination, including management on what to do when an employee complains or when management sees inappropriate conduct taking place. 
  • Review the company’s complaint and investigation procedures to ensure complaints are taken seriously and investigations are conducted effectively with a focus of remedial action when necessary.

We recommend you contact your employment counsel to ensure your policies and practices are tuned up.