New Year’s Resolutions – what New Year’s Resolutions? Hopefully, that is not your first reaction to this post. As was discussed in two previous posts (February 1, 2011 and February 10, 2011), even if you did not resolve to have more productive employees and cut costs, we have some simple suggestions to help you do just that. By now, hopefully you have updated your anti-harassment policies and distributed them to employees, and, if you are really ahead of the game, scheduled training for your employees. So, you’re done, right? Not quite.
As was previously posted, when dealing with harassment complaints, an employer may have an affirmative defense to a discrimination or harassment claim where it took reasonable care to prevent and correct any harassing or discriminatory behavior. If you have revised your harassment/discrimination policies and made sure all your employees know about the policy, then you still have to make sure that you correct any harassing or discriminatory situations that arise. A recent Oregon case from the 9th Circuit reminds employers that employers must still address complaints of harassment even where the employee is no longer employed by the company. In Dawson v. Entek International, the 9th Circuit held that the employer was not entitled to summary judgment based upon the Faragher/Ellerth defense. Mr. Dawson alleged during his employment that he was harassed on account of his sexual orientation. As the Court noted, it is not enough that the harassment may have stopped, the employer must be able to demonstrate that it took actions designed to correct past discrimination and deter future acts of discrimination. The Court also noted that once Mr. Dawson complained, his employer did investigate the complaint. However, that investigation did not take place until after Mr. Dawson had been fired and even then, there was no discipline issued to any of the supervisors involved. The Dawson case is a little scary for employers, because it faults an employer who, although it did not find the complaints of harassment credible, it still provided counseling and training.
The Dawson holding does not mean that an employer has to uphold every complaint of harassment, but does underscore how important it is to be able to document that a thorough investigation was undertaken, especially where no harassment is found to occur.
The Equal Employment Opportunities Commission recently won a well-publicized $1.5 million dollar verdict in EEOC v. Mid-American Specialties Inc. in the Western District of Tennessee, which highlights what we are saying about being proactive with harassment policies. The verdict included $1.1 million in punitive damages, which was awarded in large part because the Company had no written harassment policy, never provided training on harassment, and did not have an established complaint procedure. The testimony of some of the Company’s officials that they did not believe a policy was necessary and the HR manager’s admission that she did not even know what the definition of harassment was, likely did not help either.
If you have not exactly been keeping up with your New Year’s resolutions, it’s not too late to take the recommended steps to protect your company.