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Your Sexual Harassment Policy May Not Be Effective!

Do you believe your company’s sexual harassment policies sufficiently insulate the company from liability for harassment? Do you assume that, at the very least, this would be true in the event that an employee is sexually harassed but does not report it? Many HR professionals and employment lawyers would likely agree with you. But a recent Fifth Circuit Court of Appeals decision indicates that employers may not be as secure as they think they are when it comes to unreported sexual harassment.

The plaintiff in the case was Kandace Pullen, who was a temporary clerical employee for a school district in Louisiana. During her employment, Pullen alleges, she was sexually harassed by her supervisor, Timothy Graham. Pullen did not report the harassment while it was happening. In fact, she made no mention of it until about two years later, when she was questioned during the school district’s investigation of a complaint made by another employee, Aimee Harris, that Graham had harassed her (Harris). The investigation of Harris’ complaint was conducted months after Pullen’s employment with the district had ended. It was at this time that Pullen filed an EEOC charge alleging, for the first time, that she had been harassed by Graham during her employment with the district.

Whether an employer will be found liable for sexual harassment depends on several factors. If the harassment is perpetrated by a supervisor and results in action being taken against the employee (such as termination or demotion), the employer will be held strictly liable. But if there is no tangible employment action, the employer can offer a defense to liability. The employer must show that it exercised reasonable care to prevent and correct sexual harassment, and that the employee unreasonably failed to take advantage of preventive or remedial measures offered by the employer. In other words, if the employer has an anti-sexual harassment policy with clear complaint procedures for employees who are harassed, and an employee fails to utilize that procedure before suing the employer, the employer will generally not be held liable.

In the Pullen case, the lower court applied that very analysis. The court granted summary judgment to the school district, effectively throwing plaintiff’s case out, because Pullen had not reported the harassment despite the fact that the district’s harassment policy was posted on bulletin boards in the office and available online. The district even provided regular sexual harassment training to the majority of its employees. The Court of Appeals, however, viewed things differently. The appellate court noted that Pullen, as a temporary employee, had never been given sexual harassment training, and that she alleged she had not even known that the district had a sexual harassment policy at all. Pullen claimed she had never noticed the copies of the policy posted on bulletin boards, and she offered evidence that other employees working in the same office were equally unaware of the policy. Finding that this evidence “generates a reasonable inference that the policy was not posted in a conspicuous location,” the appellate court reversed the district court’s decision. In support, the court cited similar decisions from the First Circuit and Tenth Circuit Courts of Appeals.

What does this mean for employers? It means they should not allow themselves to become complacent about their sexual harassment policies, including the manner in which those policies are distributed. It is not enough simply to have a policy in place; employees must be made aware of the policy. Moreover, employers should be prepared to offer evidence of that awareness. This means that having each employee sign an acknowledgement of his/her receipt of the employee handbook is more important than ever. Equally important is making sure the sexual harassment policy contained in the handbook is clearly communicated and can be easily understood. Relying on bulletin boards to get the word out, or even posting the policy online, is not enough, as the school district in the Pullen case found out. Moreover, temporary or seasonal employees should not be excluded from the process; it is the employer’s responsibility to ensure that all employees become familiar with the policies.

Ultimately, an employer’s focus should not solely be, “How can we avoid liability?” but, rather, “How can we keep harassment from happening and how we put a stop to it and help the victim if it does happen?” Asking these questions and doing the work they require will help keep companies on track toward having meaningful, accessible anti-harassment policies.

This article is intended for general information only and should not be construed as legal advice.


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