Will Your Policies Allow You to Beat a Sexual Harassment Claim?
February 29, 2012
The plaintiff worked as an assistant to two district judges and asserted that one of the judges sexually harassed her during her almost 10 years of employment. The employee claims that she told a co-worker about the harassment, which included inappropriate touching and forced kisses.
The court's employee handbook informed employees how to report harassment, and the assistant had signed the written policy when she started work.
In 2007, the woman told the chief judge of the court that her boss made her uncomfortable, but did not reveal that the misconduct was sexual. The chief judge explained to her how to make a formal complaint and promised support if she did make a complaint. She took some time to consider, but declined, stating that the problem had been resolved.
About a month later, while on medical leave for drug and alcohol abuse treatment, the assistant reported the harassment to the non-offending judge she also assisted. That judge immediately reported the complaint to the court administrator. The administrator then filed a formal complaint with the Office of Judicial Assistance and an investigation was initiated. The administrator worked on changes to the employee's duties to take effect when she returned from medical leave.
In the ensuing month, the employee was arrested on felony charges. Because she admitted to the facts of the case, the chief judge notified her that she was disqualified as a judicial assistant because she admitted to committing a felony. For this reason, her employment was terminated.
The employee proceeded to file sexual harassment and retaliation charges in federal district court, resulting in requests for summary judgment by both parties. The district court granted summary judgment in favor of the court based, in part, on the Faragher/Ellerth affirmative defense. The 10th Circuit Court of Appeals agreed. "United States Court of Appeals, Tenth Circuit," www.caselaw.findlaw.com (Sept. 7, 2011); "What happens in chambers may not stay in chambers," Colorado Employment Law Letter (Jan. 1, 2012).
Commentary and Checklist
- Implement a policy prohibiting wrongdoing, including harassment.
- Orientate your employees about harassment and discrimination and your policies prohibiting the same.
- Train your managers and supervisors on wrongdoing prevention, like the prevention of sexual harassment.
- Document your training and orientation efforts.
- When a complaint of wrongdoing is made, conduct a professional and timely investigation.
- If an employee commits wrongdoing, and that person is allowed to remain in the workplace, make certain that the person is monitored closely so he or she does commit further wrongdoing.
- Complainants should be provided a means to report any further wrongdoing or retaliation without fear.
- Act quickly and decisively if you discover that retaliation has occurred.
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