Quick Corrective Action Against Sexual Harasser Avoids Liability

Issue. During a midnight shift, a male police officer grabbed a female officer by the face, pulled her towards him and kissed her on the lips. The kiss followed several seconds of “shadow boxing” where the male officer pretended to be hitting the female officer. Immediately after the kiss, she pushed him away and clearly indicated that his conduct was unwelcome. He apologized but she didn’t accept his apology.

The employer’s response. Their supervisor witnessed the incident. During that same shift, the supervisor privately reprimanded the male officer and warned him that similar conduct would result in more severe punishment. At the shift’s end, the supervisor reported the incident to his immediate supervisor, who recommended that the male officer be formally reprimanded and issued a written warning. The shift supervisor also warned the entire squad that horseplay, joking and the like would not be tolerated in the future. Four other female officers were questioned to determine whether similar conduct had been directed at them.

When the male officer next reported to duty, he was placed on administrative leave with pay for two months. During this period of leave, he was transferred to another squad effective upon his return from leave. Following an extensive investigation, the Chief of Police found the officer had violated the city’s sexual harassment policy. Consequently, the Chief ordered a two-week suspension without pay, reduction in rank, transfer to another department and corrective counseling.

Nobody’s satisfied. The male officer appealed this ruling. Eventually, the Assistant City Manager set aside the demotion and pay reduction but let stand the formal reprimand and supervisor’s warning. The City Manager also transferred the male officer to another squad. Despite these efforts, the female officer filed an administrative complaint, which did, however, create resentment among her fellow squad members. She requested, and eventually was granted, a transfer to another squad. But she experienced similar resentment. Eventually she terminated her employment and filed a Title VII claim against the city alleging that the city failed to take reasonable and adequate action to stop the harassment.

However, neither the male officer nor any other officer of the Police Department engaged in sexually harassing conduct following this incident.

Even though no one is satisfied with the result, was the city’s action taken in response to the male police officer’s conduct adequate?

Answer. Yes, the responses made by city officials to the officer’s actions were sufficiently “prompt and adequate” to keep the city from being liable for the officer’s actions.

Harassment effectively ended.
The court rejected the female officer’s contention that the Assistant City Manager’s sanction-reducing decision was in effect a complete exoneration of the male officer’s conduct, thus reducing the effectiveness of the initial response to zero. However, the Assistant City Manager’s decision had no effect on the official reprimand, warning, administrative leave or transfer, said the court. Moreover, the harassment stopped following the city’s response. These two factors pointed to the fact that the overall response was prompt and adequate, particularly because the harassment ceased, said the court.

Quick and thorough response.
The employer avoided liability because of its quick and thorough response.

  • First, the shift manager privately admonished the male officer and immediately informed his supervisor of the harassing conduct.
  • Second, the immediate supervisor ordered an official reprimand and warning.
  • Third, the two supervisors then met with the entire squad to reiterate that such conduct would not be tolerated.
  • Fourth, following the filing of an internal complaint, the city further disciplined the officer with administrative leave and transferred him upon his return to duty.

The city took definitive corrective steps to make sure that the immediate harassment stopped. Further, the city’s response set a precedent for the type of action it would take against harassing individuals, helping to ensure that similar conduct would likely not occur in the future.

Cite: Mikels v Durham, City of (4thCir 1999), 75 EPD 45,930.

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