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Nancy Drew and the Sex Harassment Case: The Supreme Court Reinforces the Need for Strong Anti-Harassment Policies and Active Follow-Up

A recent United States Supreme Court decision has underscored the need for employers to have: 1) consistent and specific anti-harassment policies; 2) thorough anti-harassment training, especially for its managers, and 3) managers, HR and otherwise, who are observant and actively engage in the resolution of any complaint made, even when it is made half heartedly.[1]??A company may be liable for harassment, regardless of whether it was aware of the harassment, when the harassment is perpetrated by a supervisor results in an adverse employment action such as termination, demotion or unfavorable reassignment.[2] In circumstances where the employee alleging harassment has not suffered an adverse employment action, the company may be able to avail itself of a two-part affirmative defense. Pursuant to that defense, the company may be able to avoid liability where it has exercised reasonable care to prevent and correct promptly any harassing behavior and the employee has failed to take advantage of any such preventative or corrective opportunities and/or otherwise failed to avoid harm.??But is an employer strictly liable when an employee is subjected to harassment by his supervisor that is so pervasive and severe that he quits because he feels he has no other choice? It is this scenario, known as 'constructive discharge,' that concerns the United States Supreme Court in a recent opinion.??Nancy Drew Suders, the employee alleging harassment in Pennsylvania State Police v. Suders, worked as a police communications operator. For the four months that Suders was employed by the Pennsylvania State Police ("PSP"), her male supervisors subjected her to a 'continuous barrage of sexual harassment' that did not include any of the traditional adverse employment actions. Suders talked to PSP's Equal Employment Opportunity Officer twice in as many weeks. The EEO Officer did not follow-up on the first conversation. In the second conversation, Suders told the EEO Officer that she was being harassed and was afraid. The EEO Officer suggested that Suders file a complaint, but did not tell her how to do so. Unbelievably, two days after her second conversation with the EEO Officer, Suders' supervisors arrested her for "stealing" her own completed computer skills exams. Suders had taken the exam several times and been told by supervisors each time that she had failed. She came upon her exams in a set of drawers in the women's locker room, concluded that the exams had never been graded and that her supervisors had mislead her by telling her she had failed. Regarding the tests as her property, she removed them. Her supervisors arrested her and handcuffed her when she tried to return the exams. She had previously prepared a written resignation, which she tendered as soon as her supervisors arrested her. Her supervisors accepted the resignation only after reading Suders her Miranda rights.??The Court decided that when a supervisor's official act precipitates a constructive discharge, the employer is strictly liable for the harassment. Absent any official precipitating act, the company may avail itself of the two part defense mentioned above. The lynchpin of this analysis is the extent to which the supervisor's misconduct was assisted by the position he held within the company. While it is not a hard and fast rule, in general, the more "official" the act taken the less likely the company will get the chance to show it has, in fact, taken steps to rid its workplace of harassment.??The facts in the Suders case illustrate several steps an employer can take to minimize its exposure. Employers should take care to make it known that harassment simply will not be tolerated. Employees must know not only that they cannot engage in harassment, but that the company encourages them to complain if they feel they are being subject to harassment and that no retaliation will follow the complaint. Employers must have a zero-tolerance policy and be sure it is disseminated to all employees. (In fact, in Massachusetts, employers should disseminate the policy annually.) While PSP likely had such a policy, it's clear that the policy had little to no effect on Suders' supervisors and so, was not enough in and of itself. Thus, it is important that employers reinforce their commitment to a workplace free of harassment by providing anti-harassment training, especially to their employees with managerial responsibility. Finally, employers should encourage their HR personnel to be active and visible. HR personnel should make themselves readily available to employees who want to lodge complaints and should make every effort to follow-up on any complaint made, even when the complaint does not necessarily seem whole-hearted.??A company that has clearly demonstrated its commitment to a workplace free of harassment will almost always fare better in litigation than one that has not made such an effort.

[1] Pennsylvania State Police v. Suders, U.S. , No. 03-95 (June 14, 2004). The case was decided pursuant to Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C.A. § 2000e, et seq.

[2] This is not an exhaustive list of adverse employment actions, just some of the most commonly occurring.


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