Why Having A Sexual Harassment Policy And Following It Is Good For You
A recent grant of summary judgment to an employer (the employer was the District of Columbia in this case) by the federal court in DC supports what HR and employment attorneys always tell employers: have good policies and follow them.
The plaintiff in the case was an employee at a DC agency. She sued her supervisor, his supervisor, an HR employee, and DC itself (her employer) based on an allegation that her supervisor sexually harassed her. There was a lot going on in the case, but I'd like to focus on one aspect.
The court noted that the case involved "completely inappropriate conduct on the part of [the plaintiff's] supervisor." Yet, it granted summary judgment in favor of DC. Why? Because the evidence showed that the plaintiff encouraged the behavior and that as soon as DC found out about it, it took swift action. Here's what the evidence in the case showed:
The supervisor started by greeting the plaintiff with a hug every day. These hugs became sexualized and the plaintiff would struggle to pull away and smack the supervisor's hands away.
The supervisor would comment on the plaintiff's appearance and clothing, and one time touched the plaintiff's breast and leg, as well as called attention to his erection.
The supervisor would call the plaintiff into his office and engage in sexually inappropriate conversations, rub her body, gyrate on her, expose himself, and request sexual intercourse.
Sounds horrible and illegal right? Of course, and the court didn't dismiss claims against the supervisor. But here's the thing: when it came to the employer, the court found that the plaintiff was an "active participant in these exchanges." It noted that the plaintiff sent the supervisor messages on weekends and after hours with a kissy face emoji, an emoji with hearts for eyes, and an "I LIKE YOU" bitmoji. She also sent texts that said that she liked the way he placed his lips on a bottle during a meeting, complimented his appearance in a suit, and sent him photographs of her in pajama shorts, a tank top, and her underwear.
Now to the policy: the agency's sexual harassment policy advised any employee that believed that they were being subject to sexual harassment to "immediately take action" by filing a complaint with an agency supervisor or manager, an internal EEOC officer, DC's Office of Human Rights, or the EEOC.
The plaintiff didn't file a complaint about sexual harassment until a year into the alleged conduct. An investigation was conducted, which found that the relationship was consensual but that the supervisor misused his work-issued phone, engaged in inappropriate off duty conduct, and sent inappropriate messages. The supervisor was suspended for a couple of days as discipline for the inappropriate conduct.
The court noted that while an employer may be subject to vicarious liability for an actionable hostile work environment claim, a defense against such a claim is that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm
The court found the defense applicable based on the agency's sexual harassment policy and based on the fact that the agency "immediately took action in accordance with the policy to correct promptly any sexually harassing behavior."
What the supervisor did was wrong. I don't think a two day suspension was a serious enough consequence for his actions. But, the employer in this case avoided liability for a sexual harassment/hostile work environment claim because it had a good (actually great) policy encouraging employees to immediately report any perceived sexual harassment, and had multiple avenues to report such alleged misconduct. Then, as soon as the employer received a complaint, it investigated and took action. Good on it, and good that following the policy resulting in avoiding liability. A great result.