LEXINGTON, KY - As a responsible employer, you undoubtedly know that your company has a duty to prevent and remedy illegal harassment in the workplace. If proper preventive and corrective steps are taken, including investigation of reports and appropriate corrective action, you may be able to avoid any legal liability for unforeseeable incidents. But what do you do when an employee makes a report of harassment but insists that no action be taken? See what you think our fictitious HR manager, Amos Andrews, should have done when he faced just that situation in the following hypothetical example.
Promises, promises
Amos Andrews, HR manager of Sid's Cabaret, was meeting with Sid's lawyer, Billy Flynn. Sid's had just been served with a lawsuit filed by former cabaret singer Roxie Hart, alleging that she suffered sexual harassment committed by her supervisor, Al Malone. According to the complaint, Al made frequent comments about his sex life, gave Roxie hugs every day and told her he would try to get her promoted if she would go out with him. All of this allegedly caused her great mental anguish and led her to quit her job. Amos told Billy that Roxie had reported Al's behavior just before she quit. As soon as she complained, Amos had immediately conducted an investigation and, concluding that Al had done what Roxie alleged, fired him. Amos assured Billy that Sid's had an up-to-date harassment policy and conducted regular harassment training.
Billy was pleased with what he had heard so far. He then asked whether Amos had ever received any other complaints about Al. Amos thought for a minute and said, "There was one, two years ago. One of our entertainers, Velma Kelly, pulled me aside one day and told me she had something to tell me, but that I had to promise not to tell anyone or do anything about it. When I promised, she told me that Al had been making suggestive comments and giving her hugs. She said she had made me promise not to do anything about it, because she thought Al was just lonely and she did not want him to get in trouble. I never had any other complaints about Al from Velma or anyone else."
Did Amos do the right thing in making and keeping his promise to Velma? Will that cause any problems as far as Roxie's lawsuit is concerned?
Double trouble
When an employee or former employee sues an employer because of harassment committed by a supervisor or manager, she must be able to convince the court that the employer is liable for the supervisor's or manager's conduct. Because supervisors and managers act on behalf of their employers, there is an automatic presumption that the employer is liable for their conduct if they engage in illegal harassment. However, an employer may overcome this presumption if it can prove, among other things, that it exercised reasonable care to prevent and promptly correct any harassing behavior.
Billy was initially optimistic that Sid's would be able to prove that it exercised reasonable care to prevent and promptly correct the harassing behavior in Roxie's case: it had a harassment policy, conducted regular harassment training, conducted an investigation as soon as Roxie complained, and fired Al when it determined Roxie's complaint was valid. All harassment thus immediately ceased. But, what about Velma's report from two years ago? There was a similar case a few years ago where a Kentucky court held that the employer could not have exercised reasonable care to prevent the current harassing behavior because it had failed to take action against the same harasser when a report was made in the past. The employer could have the same problem here.
What should Amos have done to avoid the problem Sid's now faces? To avoid the problem entirely, he could have told Velma when she first came to him that if she reported something that required investigation, he could not refrain from taking action. That way, Velma could choose to either make her report about Al or to remain silent. If she had gone ahead and reported Al, Amos should have investigated and taken appropriate action. If she had remained silent, there would have been no action to take. However, since Amos went ahead and made the promise to do nothing, he had to make a difficult choice: either break his promise to Velma or expose his employer to potential legal liability. While no one wants to break a promise, Amos' duty of loyalty was clearly to his employer, Sid's. This is one promise that should not be made, and if made, should not be kept.
Don't make Amos' mistake! Every complaint of harassment should be investigated, with appropriate corrective action taken, if necessary. No matter how insistent an employee's request that a report not be investigated and resolved, the request should be denied. If you decide to respect an employee's request that no action be taken, you may well be depriving your company of the best, and perhaps the only, defense to a future lawsuit for workplace harassment.
Wendy Becker is a member in the Lexington office of Greenebaum Doll & McDonald PLLC. This article is provided as general information rather than legal advice. Questions about individual situations should be directed to legal counsel.