By Kerri J. Atencio
Companies cringe when they receive that dreaded charge of discrimination claiming one of their managers sexually harassed an employee. But all is not lost if the company has an anti-harassment policy which the employee failed to take advantage of to report the offensive behavior. In that case, the company may have what’s known as the “Faragher-Ellerth” defense. In a recent Tenth Circuit decision, an employer dodged a potentially expensive bullet by prevailing on its Faragher-Ellerth defense.
The Faragher-Ellerth Defense
In sexual harassment/hostile work environment cases, an employer may be held liable when the person doing the harassing is the plaintiff’s direct supervisor or higher. However, in those cases in which no tangible adverse employment action is taken against the plaintiff in the context of the alleged harassment, employers are allowed to assert a defense to liability and damages if they are able to prove that: (1) the employer had a published anti-harassment policy prohibiting the conduct in question and providing employees with channels to report the conduct; (2) the harassed employee unreasonably failed to report the conduct using those reporting channels; and (3) the employer, on learning of the harassment, promptly took action to stop the problem behavior. Named for the two Supreme Court cases on which it is based, this is referred to as the “Faragher-Ellerth defense.”
The Supervisor Put Lewd Comments on the Menu
Nekia Anderson was employed at a Sonic Drive-In restaurant in Shawnee, Oklahoma as a carhop in the summer of 2005. Nekia typically worked morning hours when, apparently, tips tended to be higher. Anderson was supervised by Dave Sharon who, Anderson contended, submitted her to a sexually hostile work environment. For example, Sharon asked for Anderson to give him a “boob shot” on several occasions. Naturally, Anderson turned him down. Sharon also allegedly rubbed Anderson’s stomach with ice, and told her that seeing her lick frosting off of her fingers was a turn on. Sharon also stated that he liked “hummers,” meaning oral sex.
After Anderson rebuffed his advances, Sharon changed Anderson’s schedule so that she worked in the afternoon when tips were lower. The last straw for Anderson was when Sharon then assigned her to work occasionally at the fountain where she was unable to earn any tips at all. As a result, Anderson quit. Anderson claimed that these actions were taken against her because of her refusal to show Sharon her breasts and she sued Sonic, claiming sexual harassment. Sonic asserted the Faragher-Ellerth defense, which the trial court held was a compete defense to Anderson’s claims. Anderson appealed the lower court’s ruling to the Tenth Circuit, which covers Colorado and certain other western states.
On appeal, the Tenth Circuit first examined whether Sonic was entitled to assert the Faragher-Ellerth defense at all. Anderson contended that the defense did not apply, because the change in her schedule and assignments constituted adverse employment action taken against her. The Faragher-Ellerth defense does not apply if the employee suffers an adverse employment action, like a demotion, a promotion denial, or a termination. In this case, the Tenth Circuit concluded that Anderson suffered no adverse employment action, noting that carhops were occasionally required to work different shifts and sometimes work the fountain. Also important was the fact that Anderson presented no actual evidence that she earned less money as a result of these assignment changes. Therefore, Sonic was entitled to proceed with the defense.
The Tenth Circuit then turned to whether Sonic (1) had an anti-harassment policy prohibiting sexual harassment and providing employees with avenues to report harassment; (2) whether Anderson unreasonably failed to report the harassment to those higher up in the company; and (3) whether Sonic took prompt action to stop the harassment once it learned of the problem. According to the Tenth Circuit, Sonic had an anti-harassment policy published in its employee handbook that specifically addressed the harassment Anderson claimed she was subjected to and provided “flexible” reporting procedures for employees to follow if they believed they were being harassed. The evidence also established that Anderson had received a copy of the handbook, knew about Sonic’s anti-discrimination and harassment policies, but failed to report the harassment under the procedures outlined in the company’s policy.
Finally, the court determined that Sonic did not fail to investigate or enforce those policies once it learned of the problem. While there was testimony that female employees other than Anderson had complained to an assistant manager about Sharon putting ice down their shirts and no investigation was conducted, the evidence also established that the complaining employees never mentioned anything about being sexually harassed or raised the issue to the persons in the anti-harassment policy who were responsible for receiving and investigating complaints of sexual harassment. Therefore, the Court held that Sonic neither knew nor could have known of any harassment complaints. Anderson v. Wintco, Inc. d/b/a Sonic Drive-In, 2009 WL 449169 (10th Cir. Feb. 24, 2009).
Lessons Learned
This case provides some best practices for employers to follow to avoid sexual harassment claims. First and foremost, the company must publish and distribute to all employees an anti-discrimination and harassment policy that explicitly states the company does not tolerate any form of illegal discrimination or harassment. This policy should clearly identify several alternate managers or company officers employees may contact about workplace discrimination or harassment and how those contact persons can be reached. The policy should also state that all complaints will be immediately investigated by an unbiased corporate representative and that no retaliation will be taken against any employee who reports discrimination or harassment in good faith. Most importantly, the employer needs to practice what it publishes. If a complaint comes in, the company needs to jump on it and investigate. If the complaint has merit, the harasser needs to be disciplined. Finally, the complaining employee needs to be protected from any overt or subtle form of retaliation for voicing a concern about harassment or discrimination in the workplace.
For more information on this legislation, contact Kerri Atencio at (719) 475-6474 or kjatencio@hollandhart.com.
This article is posted with permission from Colorado Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.
