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The Eleventh Circuit Sets the Bar High For Employers Who Defend Hostile Environment Suits Based on Their Sexual Harassment Policy in Watson v. Blue Circle, Inc.
The Eleventh Circuit ruled in Henson v. The City of Dundee that an employer is liable for the conduct of an employee's coworker that gives rise to a hostile work environment where the employer knew or should have known of that conduct. "The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher management of the harassment ...or by showing the pervasiveness of the harassment , which gives rise to the inference of knowledge or constructive knowledge." (Internal citations omitted. Emphasis supplied.) Thus where there is testimony of numerous hostile acts by a co-worker openly committed the employee has laid a factual foundation to submit to a jury to determine whether the employer had constructive knowledge of the conduct and is therefore liable for not taking action to alleviate it.
In Farley v. American Cast Iron Pipe Company the Eleventh Circuit considered whether an employer can be held liable for hostile environment sexual harassment by a co-worker of which it has only constructive knowledge where it has a policy prohibiting sexual harassment. The court emphasized the fact that the policy of the employer in that case was well disseminated and had alternative avenues for reporting violations. The court held that:
We Determine that , because AIPCO had an effective anti-sexual harassment policy that was unequivocally communicated to employees, AIPCO was entitled to rely on the procedural framework provided in the policy to remain apprized of the conduct of its own staff.
Our holding is consistent with our view that direct liability exists when an employer knew or upon reasonable diligent inquiry should have known of the harassment and failed to take action. ...Our circuit thus places upon the employer an obligation to make reasonable efforts to know 'what is going on' with respect to its own employees. Where there is no policy, or where there is an ineffective or incomplete policy, the employer remains liable for conduct that is so severe or pervasive as to confer constructive knowledge. Where there exists an effective policy such as that present in the instant action, however, we conclude that the employer has made reasonably diligent efforts to learn and know of the conduct of its employees. Stated differently, we believe that once a company has developed and promulgated an effective and comprehensive anti-sexual harassment policy, aggressively and thoroughly disseminated and the information and procedures contained in the policy to its staff, and demonstrated a commitment to adhering to this policy, it has fulfilled its obligation to make reasonably diligent efforts to 'know what is going on' within the company; beyond this point, it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances. (Internal footnote and citations omitted.)
In Watson v. Blue Circle, Inc. the court found that the employer could not bring itself within the protection of the defense described in Farley as to several incidents of sexual harassment of which it had only constructive notice. The court reversed the lower court's summary judgement for the employer because there were factual issues as to whether its anti-sexual harassment policy was effective. Although the employer's policy was well disseminated the court held that this fact "...standing, alone is not sufficient to entitle Blue Circle to rely on the policy's procedural framework to remain apprised of the conduct of Blue Circle employees."
The Watson court pointed out that under Farley an incomplete or ineffective policy will not shield an employer from being challenged with having constructive knowledge of facts giving rise to a hostile environment. The court pointed to evidence from which "...a reasonable jury could conclude that Blue Circle failed to take immediate and appropriate corrective action." (Internal footnote omitted.) The offending co-worker's testimony indicated that the supervisor who interviewed him after Watson complained, an individual to whom Watson's supervisor reported, did not question him about Watson's allegation that he propositioned her and inappropriately touched her. The supervisor's written report summarizing his interview with the co-worker also failed to address the allegation that the co-worker had offered her money for sexual favors. After interviewing both employees separately the supervisor merely accused each of horseplay and asked them if they were willing to continue working with each other. Each replied in the affirmative. Neither employee was disciplined and the co-worker was not warned to refrain from harassing conduct in the future. There was also testimony from which a jury could infer that the interviewing supervisor failed to report the most egregious acts of the co-worker to the Human Resource department or any other person in authority.
Additionally the court was persuaded by testimony indicating an indifference of Watson's immediate supervisor to her complaints about sexually offensive conduct of an employee of a customer to whom Watson made deliveries. She asked not to be sent to that customer again. Her supervisor laughed off Watson's complaints and continued to assign her to that customer.
The reasoning in Watson focuses on evidence of an inadequately conducted investigation of Ms. Watson's complaint and the lack of any effective follow through. The interviewing supervisor, as well as Watson's immediate supervisor, had apparently received inadequate training in the implementation of Blue Circle's anti-sexual harassment policy.
The Watson decision is consistent with the Eleventh Circuit's decision in Miller v. Kenworth of Dothan,Inc. In Miller the court held that the employer was liable for co-workers' fomenting an ethnically hostile environment although it had only constructive knowledge of their conduct because its anti-harassment policy was not effective. The court observed that the policy "... was certainly not aggressively or thoroughly disseminated. ...no member of the management hierarchy was familiar with it, it was not posted in the workplace, and it was inexplicably missing from Miller's personnel file." The court derided the fact that after a meeting in which employees at the plaintiff's work location were instructed that ethnic slurs would not be tolerated one co-worker persisted in the offensive conduct. The manager of the parts department in which the plaintiff worked was aware of these ethnic insults. The unresponsiveness of the manager was found to indicate "...acceptance and tolerance of the behavior."
The Watson and Miller decisions caution employers to carefully train those who are to implement its policy against harassment. They should be thorough in obtaining the facts or at least seek the assistance of someone who has the necessary training and experience. Furthermore prompt action must be taken to assure that a complaining employee is removed from the hostile environment. This might involve a transfer or paid leave until the completion of the investigation. In some cases the information obtained from the parties will conflict and there will be no independent corroboration. Where this is the case the employer may be reluctant to discipline one solely on the basis of a co-worker's allegations. In such a case at the very least the accused individual should be warned of the potentially serious consequences of violating the anti-sexual harassment policy. In all cases the complaining employee should be encouraged to promptly bring any further incidents to the attention of someone in management with authority to act. The complaining employee should be interviewed at frequent intervals to determine if there are continuing problems.
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