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Will Your Policies Allow You to Beat a Sexual Harassment Claim?

The U.S. Court of Appeals for the Tenth Circuit recently upheld a decision by a district court in a sexual harassment and retaliation lawsuit. The alleged victim worked as a judge's assistant - the accused harasser, a judge.

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

The landmark cases of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton establish the standard for vicarious liability when a supervisor commits sexual harassment. If the supervisor's harassment results in a clear-cut adverse employment decision, the employer is automatically liable. However, absent an adverse employment decision, if the employer took reasonable care to promptly correct and prevent the harassing behavior and the employee failed to take advantage of the corrective or preventative measures provided by the employer, the employer is entitled to a defense. This is known as the Faragher/Ellerth affirmative defense.

The above case demonstrates how taking the correct steps and following procedures that have been put in place to prevent and stop sexual harassment can minimize risk for employers. To present a winning defense, an employer must show to the court that it does not tolerate wrongdoing and that when wrongdoing occurs, it acts reasonably and fairly. By using the framework set up in the Faragher and Ellerth cases, the court employer was able to defend against the assistant's harassment claims.

The employer, the court in this case, successfully demonstrated that the harassment had no connection to the employee's termination, and that every effort was made to instruct and support the employee in filing a complaint, as well as offering to prevent further harassment through a change in job duties. The case also shows that the employee had originally decided not to pursue investigation of her original complaint and failed to take advantage of the sexual harassment policy directive set out in the employee handbook.

This Site provides a Model Policy that address sexual harassment as well as training on Preventing Sexual Harassment. In addition, here are some pointers to help avoid and defend against sexual harassment claims:
  • 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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