When Is There Adequate Notice of Harassment?
May 1, 1999
Cases emerging from the lower courts since the Supreme Court's sexual
harassment decisions last summer help clarify some issues left open by those
decisions. One issue is defining whether the employer had adequate notice of
alleged harassment and, if so, whether it took prompt corrective action.
In Coates v. Sundor Brands, the federal appeals court for Alabama, Florida
and Georgia found three alleged reports of sexual harassment insufficient. One
was to a co-worker, who told the human resources manager. Over time the human
resources manager questioned the complaining employee if there were any problems
and received a negative reply. The complaining employee told the human resources
manager that, if the co-worker's discussion with the alleged harasser stopped
the harassment, she considered the matter adequately addressed.
The second time the complaining employee told her supervisor that she needed
to discuss a matter. When the supervisor, who had discussed personal matters
with the employee before, asked if the matter were personal or professional, the
employee replied that it was personal. The supervisor said that she did not have
time to discuss a personal matter; the employee never mentioned sexual
harassment.
Later, the employee talked with a manager who was about to depart for Japan
on business. Although she addressed several work-related topics, she merely
showed him a note reading, "From the Desk of Ernie Long. Hey Sweetheart
$100 for 45 minutes of hugging and kissing or $100 for stop loving Vickie
guarantee." She did not complain further.
It was six months later when the employee informed management of the
harassment. Immediately the alleged harasser was suspended without pay pending
investigation; he resigned later than day.
The court found that the first three discussions were insufficient to provide
adequate notice. Although "recognizing the great psychological burden"
placed on the victim of harassment, the court stated that correcting the problem
of workplace discrimination "cannot be done without the cooperation of
victims." When the employer has taken such steps as promulgating a good
sexual harassment policy, the employee must provide adequate notice in order to
give the employer time to correct any violation. The employer in this case acted
reasonably.
A different outcome in Corcoran v. Shoney's Colonial, Inc., out of a trial
court in Virginia resulted when a report of more egregious sexual harassment
resulted in the complaining employee's having to work for one hour each day on
the same schedule as the offending assistant manager. When the employee's lawyer
contacted the employer to ask why, her employment was terminated the next day.
The court held that the employee's retaliation claim should be tried before a
jury.
Although the offensive behavior had occurred over a period of several months,
there was a long period when nothing happened. The court held that it was not
unreasonable for the complaining employee to remain silent when no harassment
was taking place. Therefore, the employer was liable for the harassing behavior
of its manager.
The clear message of these cases is to have a strong policy against
harassment, make sure all employees are well aware of that policy, encourage
prompt reporting of harassment to one of several different management positions
and act promptly to investigate and take appropriate corrective action.
For more information please call Mary Ann Oakley at 1-888-688-8500.
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