Steven L. Brenneman, Teri F. Thompson, Elizabeth A. Ward, Editors
Ford & Harrison LLP

Vol. 18, No. 2
September 2007

EMPLOYER RETALIATION

'Anonymous' IM to coworker not a valid complaint

Suppose an employee believes a coworker is harassing him. Many companies' harassment policies suggest as a first step that the employee tell the coworker that his conduct is offensive and ask him to stop. In an unusual twist of events, a recent Seventh Circuit case shows there's a right and wrong way to confront an alleged harasser.

The lazy eye and the men's room code of conduct

Todd Bernier worked as an associate director of equity research for Morningstar, Inc., an investment research firm. Christopher Davis, who is gay, was a mutual fund analyst there. Bernier claimed that beginning in January 2003, Davis began staring at him whenever the two passed in the hallway or when Davis was near his work area, which made him increasingly uncomfortable. Bernier learned that Davis is gay some time after he brought a male date to the company's 2002 Christmas party.

In January 2004, Bernier encountered Davis in the men's bathroom. Bernier noticed Davis taking "an overt, purposeful and glaring look" at his private parts while they were both standing at the urinals. Bernier assumed he was sexually interested in him. What he didn't know at the time — and didn't learn until he filed a harassment suit against Morningstar — was that Davis has a "lazy" left eye, which sometimes makes it appear that he is "looking off at something" when conversing.

Morningstar's policy directed employees who believed they were being harassed to "discuss it immediately with your manager or the Human Resources department." Employees also were given a guide to preventing harassment that told them to look at the company's policy to determine to whom at the company they should complain about harassment. The guide instructed: "Complaints to co- workers do not put the company on notice of the harassment. Complaints to the harasser are encouraged, but cannot be required."

Bernier didn't take advantage of Morningstar's sexual harassment complaint procedure to notify the company of Davis' behavior. Instead, he sent Davis an anonymous instant message (IM) through a little-used company system that popped up on on Davis' computer without warning and said, "Stop staring! The guys on the floor don't like it." Davis believed that the content of the message and the lengths to which the sender went to ensure it was untraceable reflected antigay animus. He went to his supervisor, who showed him how to print the IM, and then promptly complained to Morningstar's HR department.

Apparently, Bernier underestimated the resources of the company's IT department. At the request of HR representative Jane Fitzpatrick, the company's network administrator investigated the source of the message and discovered it had been sent from Bernier's computer. Fitzpatrick then reported the incident to Bernier's supervisors.

The next business day, Fitzpatrick and the supervisors met with Bernier in a conference room. They showed him the message and asked if he had sent it, but he flatly denied it. After the meeting ended, Morningstar decided to terminate him. At the end of the day, Fitzpatrick and Bernier's direct supervisor met again with him to give him the bad news. Only then did he admit that he had sent the message and offer an explanation for his actions. Following his termination, he sued Morningstar for harassment and retaliation in federal court. The judge dismissed his claims before trial, and he appealed.

Harassment in the boys' room?

Bernier claimed Morningstar subjected him to a hostile work environment because of Davis' sexual interest in him. For the company to be held responsible for a coworker's actions, Bernier needed to show that it knew of the problem and didn't act reasonably to rectify the harassment once it was on notice. In other words, he needed to present evidence that he gave Morningstar enough information to make a reasonable employer think there was some probability that he was being sexually harassed.

Bernier admitted he didn't follow the complaint procedure but argued that Morningstar "indirectly" received actual notice of Davis' alleged harassment once it saw the IM and figured out that he was the sender. But the Seventh Circuit called that idea "too far-fetched" to accept, particularly given the way that Fitzpatrick received the message. Davis gave it to her because he believed he was the target of harassment because of his sexual orientation. In that context, Morningstar's focus was on ensuring that the work environment wasn't hostile for Davis, not on whether it was hostile for Bernier.

By initially denying that he had sent the message — "the one clear opportunity Bernier had for ensuring Morningstar knew that he was (very) indirectly complaining about sexual harassment" — Bernier reinforced his supervisors' conclusion. Thus, Morningstar had no actual or "constructive" notice of alleged harassment directed at him.

Bernier's failure to notify Morningstar of the alleged harassment also doomed his retaliation claim. To establish a retaliation claim, he needed to show that he genuinely believed he was being harassed and actually opposed the harassment by communicating his good-faith belief to Morningstar, which of course he didn't do. In any event, his retaliation claim also would have failed, according to the Seventh Circuit, because Morningstar had two noninvidious reasons for firing him — his improper use of the messaging system to send the anonymous IM and his lie in the meeting when asked about the message. Bernier v. Morningstar, Inc., No. 06-1617 (7th Cir., July 17, 2007).

You're on notice

Although the facts in this case are unusual, it's a good reminder why your harassment policy must include a clear complaint reporting procedure. In cases of coworker harassment, the employee must show that you knew or should have known of the problem. Of course, there may be cases in which employees other than the alleged victim complain to management or the harassment is just so rampant that management should have known what was going on. But absent that, if your harassment policy contains a clear complaint reporting procedure, an employee who fails to follow it will have trouble holding you responsible for alleged harassment.

Copyright 2007 M. Lee Smith Publishers LLC

ILLINOIS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Illinois employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.