October 24 Tip of the Week
“Policy, policy, and more policy”
At myHRcounsel, we advise our clients of the importance of having clear, well-written, and widely disseminated policies on a regular basis. I am sure that, at times, such advice may seem simplistic and trite. However, a recent case involving the City of Atlanta demonstrates the importance of having well-written, widely disseminated, accessible, and consistently implemented policies.
Four plaintiffs filed a discrimination suit against the City of Atlanta alleging that they were sexually harassed and discriminated against on the basis of their gender. The City of Atlanta filed a successful motion for summary judgment, claiming that it was not on notice of the harassing and discriminatory conduct and, therefore, could not be held liable for the activities of the plaintiffs’ managers. In rejecting the plaintiffs’ appeal and affirming the decision of the lower court, the Eleventh Circuit court discussed in depth the affirmative defense available to employers under the Faragher and Ellerth decisions.
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), is a Supreme Court decision that lays out the requirements necessary for an employer to avoid liability for a supervisor’s harassing conduct. For this defense to apply, the employer must show: (1) that it acted reasonably and promptly to correct any harassing behavior and (2) that the plaintiff employee failed to utilize any corrective or preventative opportunities provided by the employer and did not act to avoid harm. See, e.g., Banks v. City of Atlanta, No. 21-14122 (11th Cir. 2022)(unpublished opinion). The reasoning in Faragher was also applied in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998). In order for this defense to be successful, however, the employer must show that they took action to prevent and address harassment in the workplace – hence, the importance of an employer’s policy.
In Banks, the court pointed to the fact that the City of Atlanta had a comprehensive policy in place: “By showing that it promulgated and disseminated a sexual harassment policy that contained multiple reporting options, the City met its burden of demonstrating that it exercised reasonable care to prevent sexual harassment.” USCA11 Case: 21-14122, p.8. The court further noted that the policy in question was disseminated on multiple occasions to employees and new hires and readily available and accessible by employees at all times. Finally, the court also specifically mentioned that the policy provided multiple avenues for redress under the policy, meaning that an employee who felt they were being harassed by their supervisor could file a complaint with another official identified in the policy. Based on this, the court found that the City of Atlanta met the first prong of the affirmative defense in Faragher and Ellerth.
The court also found that the second prong of the affirmative defense was met because the named plaintiffs all delayed reporting the harassment that they experienced. For some plaintiffs, the delay was years – up to two or four years after the harassment occurred – and, for another plaintiff, it was several months. Taking into account the delay in the reporting and the speed with which the City responded once the complaints were filed, the court affirmed the decision to grant the City’s summary judgment motion:
Further, because the City suspended Ewing, investigated him, and fired him within days of receiving the first formal complaint, there is no basis in the record to support a finding that the City failed to take prompt remedial action after it received actual notice of his misconduct. [citations omitted] Thus, the district court did not err in granting summary judgment against Washington’s Title VII claim.
USCA11 Case: 21-14122, p. 10.
What are the important lessons to be learned from this decision? First, an employer must have an anti-harassment policy that is shared with employees on a regular basis and is readily available for the employee to access on their own – via a website or an employee handbook – so that they can refer to the policy if they are experiencing harassment and understand their complaint procedures. Second, the policy must include multiple avenues for reporting claims of harassment. Forcing an employee to report their harassment to a single individual, such as their manager, is not a valid policy because it may require the harassed to report their feelings of harassment to the harasser. Third, employers must act quickly and decisively when faced with claims of harassment. In the City of Atlanta case, the alleged harasser was immediately suspended when the claims were filed, investigated and terminated when the allegations were proven. Employers have an obligation to investigate all claims of harassment – both formal and informal. Even though the court in this instance found that the City was not on notice of the harassing behavior, that may not be the case in all instances. When an employer becomes aware of an employee’s concerns regarding harassment, either directly from the employee being harassed or from a supervisor or colleague of that employee, the employer should immediately investigate those concerns. This will allow the employer the ability to avail itself of the affirmative defenses in Faragher and Ellerth.
At myHRcounsel, we can assist you both in developing a strong, legally compliant harassment policy and help you address harassment complaints in the workplace.