Consider the following:
- A federal district court jury in Tennessee has awarded $1.5 million in compensatory damages to a former assistant U.S. Attorney who claimed that her supervisors discredited and humiliated her after she filed a sex discrimination charge regarding a poor performance evaluation. Hudson v. Reno D.C.E. Tenn. No. 3-92-737 (October 14, 1994).
- The U.S. Court of Appeals for the Eleventh Circuit has affirmed a district court decision which ordered that the owners of a Florida hotel pay $420,670 to a former female employee who accused the president of the company hired to manage the hotel of sexual harassment. The lower court had previously ordered the management company to pay $1,081,605 in damages to the employee who claims she was harassed into having sex with the company president before she quit her job. Virgo v. Riviera Beach Associates, F.3d (11th Cir. Case No. 93-4032 1994).
- A recent survey of California jury verdicts shows that jury verdicts from state and federal courts in California for the first nine months of 1994 averaged $875,620.
To avoid such risks, employers must develop and implement an effective method for employees to raise sexual harassment complaints, as well as prohibit incidents of workplace misconduct.
According to a recent decision of the United States Court of Appeals for the Third Circuit, such actions may shield an employer from liability against claims for hostile environment sexual harassment.
Trude Bouton was hired by BMW in July 1984 as a bilingual secretary. In April 1986 she became secretary to Hans Duenzl, the vice president of services. In December 1986, Bouton complained that Duenzl prohibited her from going to lunch because he was dictating an urgent fax to Germany. When Bouton asked Duenzl if she could go to the bathroom, he allegedly responded in the crudest terms but without sexual connotations.
As a result of Bouton's complaint to the company's human resources department, the company commenced an investigation which included its president interviewing Duezl. Although it concluded that no harassment had occurred, the human resources department granted Bouton's request to work for another vice president.
Bouton nonetheless filed suit in federal district court alleging violations of Title VII of the 1964 Civil Rights Act, as amended, and under state law. The district court concluded that there was no employer liability under Bouton's Title VII claim and dismissed Bouton's state law claims based on the expiration of the applicable statute of limitations. Bouton appealed.
The court of appeals found that a grievance policy known to potential victims "eradicates apparent authority the harasser might otherwise possess," and forecloses employer liability for acts of harassment by co-workers.
The court concluded that because the procedure and company's response was effective to resolve the claims of harassment, there could be no breach of the employer's duty to provide a non-hostile work environment. Bouton v. BMW of North America, F.3d (Case Nos. 93-5296 and 93-5316, 3rd. Cir. 1994).
Employers are advised to consider the following steps:
- Develop and communicate to all employees a written complaint procedure that provides for employees to communicate claims and complaints of any sort, including those for sexual or other harassment. The policy should define prohibited harassment, the potential discipline for engaging in harassment, and identify individuals within the organization authorized to receive and investigate such complaints.
- Federal and state laws and regulations often require employers to post notices describing applicable laws which prohibit discrimination and harassment in the workplace. Employers should ensure that all applicable posting requirements are met.
- Complaints of harassment should be promptly investigated, and the employer should document that investigation.
- The employer should be prepared to discipline any member of its work force, including members of supervision and management where appropriate.
Because a complaint could become the basis of a lawsuit, an employer should approach each investigation and respond to such complaints with the thought in mind: Would a jury conclude that the company's response to this complaint was reasonable?
Personnel Journal, February 1995, Vol. 74,, No. 2, pp. 38-39.