Final Warning to Harasser Must be Enforced 12-05-2007
- By Rita Risser, attorney at law

In March 2003, a woman employee complained about harassment to her supervisor. The company investigated, and found many women had been severely harassed by him.

The employer gave him a final written warning, suspended him for 5 weeks without pay, ordered him to undergo counseling, curtailed his ability to go to various buildings, took away his master key, and ordered him not to be alone with any female employee. He was told that further violations would result in termination.

Despite this, he continued harassing. The woman employee again complained, and the employer again suspended the harasser from work and gave him a written warning, which said, "[a]ny future complaints of conduct of harassment or violation of the aforementioned terms and conditions will result in additional administrative action, up to and including the termination of your employment."

After that, the harassment continued, and the employee quit her job. She sued. The employer argued it had taken reasonable measures to prevent the harassment and could not be held liable. The 8th Circuit Court of Appeals disagreed.

The court held the employer was negligent by responding to the continued harassment by decreasing, rather than increasing, its threatened sanctions. The reasonableness of an employer's response to repeated sexual harassment "may well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before will be effective."

The Court noted that the employer's backtracking may have emboldened the harasser and contributed to his continued harassment.

Engel v. Rapid City School (8th Cir 11/09/2007)

What this means to you: Reprimands should be carefully written to prevent this kind of result. If the first letter had threatened further discipline "up to and including termination," the employer probably would have been able to give two more warnings and would not have been held negligent. But by promising termination in the first warning, the employer had backed itself into a corner.

California employers: all supervisors must have anti-harassment training by the end of 2007. Call us to get your training now! 1-800-458-2778

"I think you have done a fabulous job constructing this program."
       Manager, Hitachi Data Systems, Inc.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.