Employer's Sexual Harassment Policy Is Turned Against Employer
 
March 14, 2001
 
Michael J. "Mike" Ranallo- Chicago

Progressive, proactive employers have anti-sexual harassment policies with built in procedures for employees to use if they experience or observe harassment in the workplace. These policies are only effective, however, if carefully drafted and implemented by management. The Eleventh Circuit Court of Appeals’ recent decision in Breda v. Wolf Camera & Video makes this point loud and clear.

Gabrielle Breda was a salesperson at a Wolf Camera store in Savannah, Georgia. Her supervisor was Sharpley, the store manager. Sharpley, in turn, reported to a district manager who visited the store periodically. Breda claimed that, from the day she began working at the Savannah store, she was subjected to continual sexual harassment by Morris, one of her male coworkers.

Wolf Camera had a written policy against harassment stating: “Anyone who believes that he or she is being subjected to harassment or who has witnessed such harassment must immediately notify his or her manager. If the problem is not immediately resolved, the associate should contact the Personnel Department.” Under this policy, Sharpley, the store manager, was the person that employees at the Savannah store were to notify in the event of harassment.

Acting in accordance with Wolf Camera’s policy, Breda complained to Sharpley on at least four or five occasions about Morris’ conduct. The harassment nonetheless persisted for nearly 14 months, ultimately prompting Breda to resign. She then filed suit against Wolf Camera, claiming that she had been constructively discharged, or forced to quit, on account of Morris’ behavior. Specifically, she alleged that Morris’ behavior created a hostile work environment in violation of Title VII of the Civil Rights Act.

To prove her case before the trial court, Breda had to show, among other things, that Wolf Camera either knew or should have known of Morris’ harassment but failed to take corrective action. She tried to do this by pointing out that she complained to Sharpley just as she was supposed to under Wolf Camera’s anti-harassment policy. Breda also argued that Wolf Camera had notice of this harassment because, under its policy, the Company held out Sharpley as having the authority to act on complaints of harassment.

In its defense, Wolf Camera argued that, simply because Breda had complained to Sharpley, it does not mean that the Company was on notice of the harassment. As Wolf Camera explained, the problem was that Sharpley did not comply with its internal management policy that directs store managers to refer harassment complaints to the district manager or the personnel department. Accordingly, upper management was unaware of Breda’s complaints. The trial court agreed with Wolf Camera and dismissed Breda’s lawsuit. Brenda then appealed to the Eleventh Circuit.

The Court of Appeals disagreed with the trial court’s rulings. First, the court noted that Breda followed Wolf Camera’s anti-harassment policy when she complained to Sharpley. Indeed, as the court observed, the Company’s policy states that employees must complain to their store manager. If the problem is not resolved, the complaining employee should, but is not required to, contact the personnel department if the problem is not resolved. The court then commented that when an employer has a clear, written policy for reporting harassment, and an employee follows the policy as Brenda did here, the issue of whether the employer had notice of the harassment is established by the terms of the policy itself. Under Wolf Camera’s policy, the store manager was designated as the frontline person responsible for handling harassment complaints. Thus, once Sharpley knew of Breda’s complaints, the Company knew of her complaints. As the court put it, from that point forward, Breda did not need to be concerned with whether she pursued her complaint “far enough up the company ladder.”

There are two lessons here for employers. First, anti-harassment policies must be drafted carefully so that employees understand which managers or human resources representatives have authority to handle their complaints. Harassment policies also must describe very clearly the steps that employees must take in voicing their complaints. Second, once an employer implements a policy, the employer must follow it to the letter. To ensure this, managers and human resources representatives should be trained so they understand their responsibilities under the policy.

For more information please contact Michael Ranallo at 1-888-688-8500 or at mranallo@hklaw.com.