SEXUAL HARASSMENT

Sexual harassment policy alone insufficient to prevent liability

A recent case from the Missouri Court of Appeals illustrates that simply having an antiharassment policy may not be enough to avoid liability for sexual harassment. Read on to learn how to protect yourself from sexual harassment claims.

Importance of sexual harassment policy

As we regularly remind readers, every employer should have a well-drafted policy prohibiting harassment and informing employees how to report suspected harassment. A well-crafted antiharassment policy serves a number of purposes. First and foremost, it conveys your expectations to employees. It also encourages employees to report harassment so allegations can be investigated and remedied. Indeed, employees complaining of harassment may never feel a need to file a formal charge if the problem is addressed at the outset. Additionally, an antiharassment policy can help you avoid punitive damages if a harassment suit is filed. In essence, it serves as evidence that any harassing conduct was a violation your policies.

An antiharassment policy is also critical in defending against an allegation of harassment when the alleged harasser is a supervisor. As regular readers of Missouri Employment Law Letter will recall, the U.S. Supreme Court has found that when a supervisor sexually harasses an employee but the employee suffers no tangible adverse job action (e.g., termination, demotion, or denial of a promotion), you may be able avoid liability.

You can do that by demonstrating that (1) you exercised reasonable care to prevent and promptly correct any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided or to otherwise avoid harm. This legal principle, known as the Faragher/Ellerth affirmative defense, was the outcome of two U.S. Supreme Court cases ― Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth.

Background and trial court's decision

Lori Herndon worked for the city of Manchester as a police officer from October 8, 2001, until February 3, 2005. Herndon filed a sexual harassment claim against her employer based on the actions of her supervisor, Willie Epps. The city asked the trial court for summary judgment (i.e., to throw the case out without holding a trial). For purposes of the summary judgment request, the city didn't dispute that Epps sexually harassed Herndon. Nevertheless, it claimed it could avoid liability under the Faragher/Ellerth defense.

The trial court dismissed the case in the city's favor. It was undisputed that the city promptly and properly responded to Herndon's sexual harassment complaint. Thus, the trial court found that it met the second element of the test (that the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm).

The trial court found that the city also met the first element of the test because it exercised reasonable care to prevent and promptly correct any sexually harassing behavior by establishing a sexual harassment policy.

Herndon appeals

Herndon appealed the trial court's decision. She argued that the city didn't exercise reasonable care to prevent and correct harassment. In making her case, she cited a number of other complaints that had been made against Epps. Specifically, she pointed to his employment at Northwoods Police Department (before joining the Manchester Police Department). At the time, he had a secondary job as a security guard at Schnucks grocery stores.

While working at Schnucks, a female employee filed a complaint against Epps for sexual misconduct. She claimed that Epps exposed himself to her when she came out of the store bathroom and that he had pursued her sexually. Epps was later terminated from Northwoods Police Department for violating another employment policy, and it is unclear how the allegation by the Schnucks employee was resolved.

After his discharge, Epps applied for employment with the city of Manchester. The city apparently sent a request for information to Northwoods, but Northwoods replied by providing only basic information about Epps' dates of employment. The Manchester police chief testified that he typically responded the same way to requests for information on employees who were discharged for misconduct. However, he testified that he would expect one of his employees to follow up with Northwoods to obtain additional information about Epps' previous employment.

Herndon also established that Epps had a citizen's complaint filed against him while working for the city of Manchester. The complaint pertained to an investigation Epps conducted while responding to a peace disturbance complaint at a house where a "hot tub party" was being held. Shortly after, Epps drove by the house, saw one of the women who was in the hot tub, and commented on how she looked in her swimsuit.

Epps continued to drive by the home and at one point even pulled the woman over for a traffic stop. During the traffic stop, he asked her if she dated outside of marriage ― which prompted the complaint to the department by the woman's husband. When confronted, Epps denied the allegation, and the police chief merely told him to stay away from the couple.

After Herndon complained of Epps' harassment, the city almost immediately changed his schedule so that he would have no further contact with her. It then asked the Missouri State Highway Patrol to conduct an investigation of Epps while the police department conducted its own internal investigation. When the investigation was completed, Epps was terminated.

Court of appeals orders jury trial

On appeal, Herndon argued that the trial court shouldn't have granted summary judgment because there were questions about whether the city took reasonable steps to prevent and correct the alleged sexual harassment. The court of appeals agreed, pointing out that the mere existence of a sexual harassment policy is insufficient to establish the Faragher/Ellerth affirmative defense. Instead, the court noted that the employer's implementation of the policy must be closely examined.

The court of appeals found that a jury could conclude that the city failed to act reasonably when it didn't follow up after receiving Epps' employment verification with only his dates of employment from the city of Northwoods. The court also found that a jury could conclude that the city didn't act reasonably in responding to the citizen's complaint against Epps. Specifically, the city's policies required it to investigate allegations of misconduct against its officers, to complete an investigative report, and to keep the citizen advised of the status of the allegations.

In this case, the evidence established that after receiving the husband's allegation of harassment, the city didn't conduct an appropriate investigation. Instead, it simply accepted Epps' denial and informed him to stay away from the citizen. Lori Herndon v. The City of Manchester, No. ED91175 (Mo. App., March 24, 2009).

Lessons learned

The Herndon decision contains a number of important lessons for employers. Obviously, you must have a well-crafted antiharassment policy, and your employees must receive regular training on it. Once these basic steps are taken, it's imperative that you respond in good faith to allegations of harassment. You must thoroughly investigate allegations of harassment as part of a good-faith effort to determine the merit of the claims. If you have a policy or practice of steps to take while investigating claims of sexual harassment or discrimination, make sure you don't skip any of those steps.

Once a thorough investigation is complete, you should take prompt remedial action to end the harassing conduct. You simply cannot sweep allegations under the rug. Only by following these steps will you be able to avoid a costly trial.

In addition, if you seek references from past employers, you may want to follow up on a response that confirms only dates of employment. While you may not be successful in collecting additional information from the previous employer, attempting to follow up will prevent a court from second-guessing you for failing to try. As this case illustrates, Missouri state courts are imposing a high standard regarding actions you should take in implementing a sexual antiharassment policy and investigating sexual harassment claims.