Employee Informally Reported Harassment 22:25, July 28, 2016

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Employee Informally Reported Harassment

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Grzegorz Smuk worked as a maintenance mechanic at Specialty Food Group’s food processing and packaging plant in Chicago. He claimed that his supervisor, Tomasz Miekisz, began sexually harassing him shortly after he started working at the plant in May 2006, and continued to harass him until July 2012.

Smuk claimed that Miekisz grabbed him, slapped him, made inappropriate comments, and showed him pornography at work. When Smuk complained, Miekisz assigned additional work to him and his coworkers and told the coworkers that they could “blame Smuk for additional work assignments.” Miekisz also told Smuk that “I am your boss and you can’t do anything to me.” Smuk’s coworkers ridiculed him for the treatment he received from Miekisz.

In 2009 Smuk told Paul Sowizral, the plant superintendent, that Miekisz was molesting him and inappropriately touching him. Sowizral did not report Smuk’s allegations to Human Resources. Instead he spoke directly to Miekisz, telling him to “treat everyone fairly.”

Miekisz continued to sexually harass Smuk until July 2012, when Smuk complained to Specialty’s Human Resources manager. After an investigation, Miekisz was suspended and required to attend anti-harassment training. His inappropriate conduct toward Smuk ceased.

Smuk felt that his complaint to HR failed to cause any significant changes and that Miekisz’s suspension was inadequate punishment. He filed a claim of discrimination with the Equal Employment Opportunity Commission (EEOC).

Employers can be held strictly liable for a supervisor’s sexual harassment — even if the employer knew nothing about it — if they took an employment action against the employee, such as discharge, demotion, or a change in the employee’s working conditions. If an employer took no such action, as was the case here, the employer can try to establish the Faragher-Ellerth affirmative defense. Named for two US Supreme Court Title VII cases, the defense allows an employer to avoid liability if the employer can prove both (1) that the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior and (2) that the employee unreasonably failed to take advantage of opportunities provided by the employer.

In this case, Specialty said that Smuk unreasonably failed to follow the company’s sexual harassment policy, which told employees to report harassment to (1) an immediate supervisor, (2) the location’s HR manager, (3) the general manager, or (4) the corporate vice president of HR. The policy did not name Sowizral’s position as a permissible recipient of a sexual harassment complaint.

However, the Court held that Smuk’s complaint to Sowizral put the company on notice that Smuk was alleging sexual harassment. Further, Smuk complained to Sowizral more than once, and the harassment happened in front of other employees. In addition, Specialty’s equal employment opportunity policy required management employees to immediately report complaints of harassment, which Sowizral failed to do. So Specialty couldn’t rely on either prong of the Faragher-Ellerth defense. The Court allowed Smuk to proceed with his claim. [Smuk v. Specialty Food Groups, Inc. (USDC NDIL 2016) no.13-cv-8282]

Employers’ Defense against Strict Liability

The Faragher-Ellerth defense doesn’t apply everywhere. For instance, New York City doesn’t recognize the defense for harassment claims under its Human Rights Law. And California has held that it doesn’t apply to claims under the Fair Employment and Housing Act. But California has a different defense, called the avoidable consequences doctrine (see California Civil Jury Instruction 2526), that may limit the damages an employee can recover.

Even in jurisdictions that recognize the defense to sexual harassment liability, it’s not a “get out of jail free” card. An employer must have a policy that’s actually effective: that works for the particular employees and how and where they do their jobs.

For instance, in EEOC v. V & J Foods, Inc., a 7th Circuit court held that a restaurant could not use the sexual harassment defense because the restaurant’s complaint procedures were too confusing. The Court noted that “. . . it is part of V & J’s business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.” The Court also noted that “[a] policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law.”

In Gorzynski v. JetBlue Airways Corp., a 2nd Circuit case, a JetBlue employee complained about workplace harassment to her supervisor, who was the one harassing her. Although JetBlue’s handbook told employees to complain to their supervisor, JetBlue argued that it was unreasonable for the employee to complain to her supervisor in this case. Therefore, JetBlue thought it should be able to use the Faragher-Ellerth defense. The Court disagreed, noting that the employee knew that other supervisors had not been receptive to employees’ complaints in the past, and said:

“We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints. . . Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.”

In Wilson v. Tulsa Junior College, a 10th Circuit Court found that a school’s policy was inadequate because it didn’t provide a mechanism for night-shift employees to make complaints.

On the other hand, an employer may be entitled to use the defense if its anti-harassment policy provides multiple ways for employees to report harassment. In Daniel v. AutoZone, an employee complained about harassment to her direct supervisor, but he did nothing about it. The employee never complained to anyone else. A federal court in New York held that the employer was entitled to the Faragher-Ellerth defense because its harassment policy had a procedure for employees to direct complaints to higher levels of management and it provided an 800 number for employees to report harassment directly to management, HR, or AutoZone Relations. The employee knew of the policy, but she chose not to follow it.

Employers Should Train Employees and Have a Clear Policy

Employers shouldn’t plan to rely on a defense after sexual harassment happens. They should also make sure that their anti-harassment policy is clear and understandable, that it allows employees to bypass a harasser when making a complaint, and that it tells managers and supervisors what to do when they hear a complaint. And just having an anti-harassment policy isn’t enough. Employers need to ensure that all workers are treated with respect. They must create a workplace culture that promotes ethical behavior and that discourages discrimination in the workplace.

Although the EEOC recommends that anti-harassment policies be in writing, its Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors states that in a small business, where the owner maintains regular contact with all employees, an owner can tell employees about the anti-harassment policy at staff meetings and can tell them that complaints can be brought “straight to the top.”

Finally, employers should remember that a court can decide that the employer had notice of harassment even if an employee didn’t make a formal complaint or didn’t follow the procedure laid out in the anti-harassment policy.

LawRoom offers online training programs to help employees recognize the importance of identifying and managing behaviors and attitudes that can lead to sexual harassment, unethical conduct, and data security breaches. To learn more about avoiding discrimination in the workplace, visit us here: LawRoom.com.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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