Note to Harassment Victims: Make Sure You Use the Employer’s Harassment Policy!

Woman being harassed.Roger Ailes. Bill O’Reilly. Harvey Weinstein. Celebrity chef John Besh. Michael Oreskes, senior vice president for news at National Public Radio. Mark Halperin, political commentator for NBC News and MSNBC. Thanks to the courageous women who went public with their complaints, these serial sexual harassers have been exposed, shamed, and removed from their lucrative positions.

In the wake of these headline-grabbing cases, the Equal Employment Opportunity Commission has just issued a guide, “What You Should Know: What to Do if You Believe You Have Been Harassed at Work“, which instructs employees that they should follow the steps in their employers’ anti-harassment policy. And a recent federal appeals case illustrates the bad results of an employee’s attempt to sue for harassment claims without giving the employer a chance to remedy the situation.

Timothy Patton was an electrical engineer, who was employed by a staffing agency that assigned him to a Jacobs Engineering Group project in Louisiana. He has a speech impediment—a severe stutter. According to the complaint he filed in federal court, Mr. Patton was harassed at Jacobs because of his stutter. For example, Jacobs employees would call him names such as “lawnmower” and “Bush Hog” (a type of lawnmower). Additionally, coworkers who passed him in the hallway or met him on the elevator would imitate his stuttering, and coworkers who sat near him would mock him and make loud noises right behind him. They said he was “pathetic” and “didn’t fit in.” Even a Jacobs supervisor allegedly imitated Mr. Patton’s stutter at a department-wide meeting in front of 50 employees.

Jacobs and the staffing agency moved for summary judgment, claiming that the harassment was not severe or pervasive enough to be illegal, and was merely “teasing and offhand comments.” They also argued that Mr. Patton was unreasonable because he had not followed the procedures set forth in the anti-harassment policies maintained by both companies and that, therefore, they could not be held liable. The trial court agreed and dismissed his case, so Mr. Patton took an appeal.

The Fifth Circuit found that the long-term pattern of ridicule that Mr. Patton endured was indeed serious enough to constitute illegal harassment. But the appeals court sustained the dismissal. It found that, because Mr. Patton did not use the anti-harassment policies, he failed to show that the defendants knew or should have known of the harassment and failed to take prompt, remedial action. Patton v. Jacobs Eng’g Grp., Inc., 2017 U.S. App. LEXIS 21028 (5th Cir. Oct. 24, 2017)

What this means to you: Almost 20 years ago, the U.S Supreme Court made it clear that employers need to have a comprehensive anti-harassment policy and to enforce it fairly, and that employees must take advantage of those policies to preserve their rights.

Fair Measures’ Respectful Workplace and Managing Within the Law workshops and Harassment Prevention Training webinar include not only legal requirements, but also focuses on your organization’s policies. Going beyond this, we address unconscious bias and microaggressions in the workplace and bring in your organizational values, as well as the values of the participants, to create a respectful workplace. To find out more about our national HR training programs or to book a workshop, please call 800-458-2778 or email training@fairmeasures.com.

Posted 11-14-2017

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.

2017-11-14T19:38:17+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.