A Recipe For Sexual Harassment Liability

I used to cook most nights for my family. But several years ago, my husband took over. He has become a master chef in the last few years, and the kitchen has become his domain. He has a smoker, he has a grill, he has utensils the names of which I do not know.

My husband also cooks by recipe—every time, which is a concept that is anathema to me. I’m a throw-it-all-into-the-pot type of person. But, he does him, and the results are fantastic. (Did you know that you can make nachos in a smoker?!?)

Now, while I’m not a recipe person, a recent case I read got me thinking—the law can be formulaic like a recipe.

But what does my marital culinary dynamic have to do with sexual harassment?

I will tell you. Using a recipe.

First, you need ingredients like the ones in Female Firefighter Jane Doe v. Fort Worth, Texas et. al, No. 19-cv-01001 (N.D. Texas Nov. 11, 2019). In that case, Jane Doe alleged being subject to the following by co-workers, including supervisors:

• ongoing unwelcome sexual advances,

• “sexually charged messages” sent by male co-workers,

• instances of non-consensual sex,

• slapped on the buttocks by a co-worker in front of her 8-year-old daughter at work,

• leadership’s ambivalence to the plaintiff’s reports of misconduct, which allegedly emboldened the harassers to continue and worsen their conduct, and

• transfer in retaliation for reporting.

Once these ingredients emulsify and bake at 350 for a while, i.e., if true and proven, a hostile work environment claim is served.

Sprinkle on claims of constructive discharge due to the offending conduct.

(To establish a constructive discharge claim for a hostile work environment, the plaintiff will have to demonstrate that the environment became so severe and abusive that a reasonable person could not stay at the job, i.e., the sexual harassment caused her to quit.)

According to the U.S. Equal Employment Opportunity Commission (EEOC):

Employers are ‘automatically liable for harassment by a supervisor that results in a negative employment action such as termination or loss of wages.’

The plaintiff’s complaint alleges that most of the harassers were supervisors. An employer is liable for unlawful harassment in violation of the Title VII of the Civil Rights Act of 1964 when the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated as the organization’s proxy.” Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284 (1998). 

But, What About Defenses??

An employer must exercise reasonable care to correct conduct in order to avail itself of a defense to a sexual harassment claim called the Faragher/Ellerth defense. As part of this defense, an employer must also show that the accuser failed to take advantage of any preventive or corrective opportunities provided by the employer.

If the allegations in the complaint prove true, the fire department in this case will be hard-pressed to make such a defense if it ignored the plaintiff’s complaints of harassment, such that it allowed the harassment to continue, and then retaliated against the employee by transferring her.

As my partner Eric Meyer said here:

A Faragher/Ellerth Defense often helps companies avoid legal liability in situations where employees wait months or years to complain about sexual harassment. Even when an employee does promptly complain about sexual harassment or other forms of discrimination at work, the company can escape liability as long as it takes steps that are reasonably designed to stop the complained-of behavior.

Did this employer try to prevent or correct the alleged harassment? Not according to the complaint

As a result, the harassment allegedly continued.

So What SHOULD An Employer Do?

Say it with me: don’t ignore claims of harassment! Also,

• Have a clear, no-tolerance sexual harassment policy in your employee handbook that discusses specific misconduct and examples, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, etc.

• Ensure your anti-harassment and anti-discrimination policies are disseminated (and updated) throughout your company and understood by all of your employees.

This important step is often overlooked as an employment policy doesn’t do much good without ensuring employees understand expectations and that the employer will enforce its policies.

• In the employee handbook, provide a written procedure for reporting and thoroughly investigating claims of unlawful harassment, and follow the procedure, extensively documenting the process along the way.

See my previous note. Have your policies, and have your procedures, but enforce them. Follow them.

• If you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against; again, document all findings.

• Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for discipline.

• Maintain a top-down culture of respect, anti-retaliation, and intolerance of unlawful harassment.

A big problem in the case against the Ft. Worth Fire Department is likely to be the allegations that the top brass tolerated the misconduct against this plaintiff and retaliated against the plaintiff when she complained.

• Provide regular, interactive, professional training to employees and managers tailored to your workplace so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) A “one size fits all” approach to training is generally ineffective.

Further, training must be promoted by senior leaders to show commitment.

• And, finally, consider your organizational culture. As I noted here, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture. Leaders must believe authentically that harassment is wrong, articulate these beliefs, and hold this same expectation of others in the workplace.

Remember, we told you most recently here and here that (1) organizations that tolerate offensive behavior typically have far greater problems with sexual harassment and, (2) indeed, scientific studies show that organizational “tolerance” is the single most powerful factor in determining whether sexual harassment will occur. In fact, studies have shown that strict management norms and a climate that does not tolerate offensive behavior can inhibit harassment, even by those with a propensity toward such conduct.

Employer Takeaway:

Aside from the above, the employer takeaway is simple here: set the right tone in your workplace, and please, PLEASE, do not ignore complaints of potential unlawful harassment or discrimination. Do not sweep claims under the rug. Doing so may result in the loss of a powerful defense and ensuing liability.