Minimizing Risk in the "New" Sexual Harassment EnvironmentLast week, numbers were released which indicate sexual harassment charges filed with the Equal Employment Opportunity Commission (“EEOC”) increased more than twelve percent as of September 30, 2018. Since January 1, the EEOC has filed 41 sexual harassment lawsuits, a fifty percent increase from last year. In July 2018, the EEOC filed seven sexual harassment lawsuits - six of the seven involved female employees; five of the seven involved purported harassment by a supervisor, manager or owner; and two of the seven alleged failure to distribute the employer’s sexual harassment policy and/or properly train employees on reporting procedures.
In January, we presented the evolving considerations related to sexual harassment amidst the #MeToo movement. Due to the intensified focus on the issue, we explained the importance of reexamining your personnel interaction policies. The numbers above indicate the issue persists in the employment context. Recent cases highlight the importance of an effective response to harassment claims. Such response can often negate employer liability.
For example, in Tucker v. United Parcel Serv., Inc., 734 Fed. Appx. 937 (5th Cir. 2018), the plaintiff claimed her subordinate sexually harassed her for approximately two years. The most severe incident occurred when the “harasser” allegedly touched the plaintiff in an inappropriate fashion. The plaintiff reported the incident to her manager. The manager immediately had the plaintiff write a statement. The following day, the plaintiff initiated a complaint with the UPS Compliance Line. She expressed concerns about whether her subordinate would be present at work and that she did not want to see him. UPS commenced its investigation and the subordinate was suspended pending the outcome.
Because UPS could not determine whether the subordinate’s conduct was intentional (the subordinate claimed he accidently bumped into the plaintiff), after a two week suspension, he was permitted to return to work. He was counseled on workplace policies and on professionalism and harassment. He was prohibited from going into places where the plaintiff was stationed. Despite being separated into different areas of the worksite, the plaintiff still complained that she felt intimidated by the subordinate. UPS provided someone to walk the plaintiff to her car and offered her the opportunity to transfer to another facility only ten minutes away. The plaintiff declined and eventually resigned because she said UPS failed to permanently remove the subordinate from her place of employment.
To establish a case of a hostile work environment based on sexual harassment, the plaintiff had to show that (1) she belonged to a protected class; (2) was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the harassment affected a term, condition, or privilege of her employment; and (5) UPS knew or should have known of the harassment and failed to take remedial action. Harassment must be “severe or pervasive” enough to create an abusive working environment in order for the plaintiff to recover.
The United States Court of Appeals for the Fifth Circuit pretermitted the issue of whether the subordinate’s harassment was legally sufficient, stating: “[E]ven assuming without deciding that the alleged harassment was sufficiently severe …, we hold that UPS took sufficient remedial action to avoid liability under Title VII … because it immediately took action to protect Tucker while the investigation was pending, and then following the investigation it moved Tucker to a separate work area, instructed McCaleb not to enter that work area, counseled McCaleb on its sexual harassment and professionalism policies, provided an escort to help Tucker feel safer, and the sexual harassment ceased.”
The UPS case demonstrates the importance of a speedy, thorough response. In today’s climate, employers should have a plan in place for responding to harassment allegations. There is no time to craft the response procedures once a complaint is lodged. When developing your process, consider the best person to conduct the investigation; make sure he or she identifies the relevant policies and procedures and follows them; put in place a mechanism for saving electronic or audio/visual records (including text messages), which can provide insight into the interactions between the complainant and the alleged harasser; consider options for separating the employees during and after the investigation; be sure the investigation is as thorough as the complaint warrants; and take meaningful action. The court viewed UPS’s response favorably due to its promptness, its regular communications with the plaintiff, and its efforts to alleviate her concerns along the way. A well-planned response not only positively positions the employer in the event a lawsuit is filed, but it also communicates a corporate commitment to an environment where employees feel comfortable and encouraged to bring employment issues to the forefront.