Employer Not Liable for Sexual Harassment After Taking “Reasonable” Action

You know that employers are not liable for harassment if they take all steps necessary to prevent harassment and respond to complaints. A new case shows that even in the #MeToo era, courts define “reasonable” quite broadly.

A woman filed a formal complaint with her company that a coworker had slapped her on the buttocks twice. This is sexual battery, a crime. But instead of firing or even warning him, the company told him not to associate with the woman or be anywhere around her. Apparently, they did not talk to the woman to get any more information about him, because according to the court’s opinion, the company only knew about this one incident.

Despite the company’s admonition not to associate with the woman, in the days following her complaint the man repeatedly rolled his eyes at her and once punched a metal machine in her presence to intimidate her. Two weeks after her first complaint, she submitted a second complaint in which she reiterated that he had hit her buttocks two weeks before, adding that she was afraid he would touch her again, that this was not the first time that he had touched her, and that he had told her he could touch her if he wanted to.

The company brought in an outside investigator to look into these and other complaints against the man. Five weeks after the second complaint, the investigator interviewed the woman, who told her about two additional times before the first complaint that he had sexually harassed her. On one occasion, he squeezed her thigh and stated that he could touch her “juicy, fat thighs” if he wanted. On the other occasion, he made a sexually explicit remark. The investigator submitted her report finding that he had sexually harassed the woman and other coworkers. Finally, the company fired him.

The U.S. Court of Appeals held that even though the company did not give a warning or, better still, fire the harasser after the first complaint, the fact that they fired him after the second complaint showed they had made a reasonable response.

What this means to you: This case is precedent only in the 11th Circuit, which covers Alabama, Florida and Georgia. But every court that has ruled on the issue has held that even severe harassment from a coworker is not grounds for suit, if the company takes reasonable steps to remedy it. This is good news for companies that take prompt, effective remedial action.

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Posted 07-17-2018

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.

2018-07-17T16:04:12+00:00

About the Author:

Rita M. Risser Chai is the founder of Fair Measures. An attorney in California for 20 years and now an attorney in Hawaii, she authored the Prentice Hall book, Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits. She developed most of the curriculum used by Fair Measures, created the firm’s first website praised in HR Magazine, and wrote numerous articles on employment law including one on best practice harassment prevention training published in the magazine of the American Society for Training and Development (now ATD). She taught Law and Human Resources at the University of California, Santa Cruz, for eight years, and has presented four times at the annual conventions of the Hawaii Society of Human Resource Management.