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Written Harassment Policy and Posters Not Enough to Avoid Liability for Supervisor Sexual Harassment

    Client Alerts
  • January 20, 2012

Most employers publish anti-harassment policies, defining prohibited behavior, and providing multiple avenues for reporting violations. Some employers with multiple locations also post notice of the policy in their premises, and provide a centralized reporting resource at company headquarters. As demonstrated in a Seventh Circuit Court of Appeals decision last week, these measures alone will not shelter employers from liability for sexual harassment claims.

In EEOC v. Mgmt. Hospitality of Racine Inc., the EEOC sued an IHOP franchisee based on alleged sexually harassing behavior engaged in by an assistant manager at one of its locations. In response, the employer pled the Faragher/Ellerth affirmative defense to supervisor sexual harassment claims, contending that it had in place an effective anti-harassment procedure that the plaintiffs failed to use. Specifically, the employer contended that the poster contained a hotline number for reporting harassment claims that the plaintiffs never called.

The Seventh Circuit rejected this defense, affirming a jury verdict for the plaintiffs. While acknowledging the harassment policy and poster, the court stated that these steps are not enough for an employer to demonstrate an effective anti-harassment program. In this case, the plaintiffs had complained to several of their locations' managers, who ignored the complaints. The poster did not provide an effective alternative means for notifying managers of harassment violations. It contained only a telephone number and not an actual contact person. Moreover, the Seventh Circuit opined that the poster should have disclosed contact information for the EEOC.

Employers cannot remove the responsibility from local management for receiving and dealing with discrimination and harassment complaints by setting up a centralized hotline number. Even if the employees fail to take advantage of the hotline, their reporting complaints to local management is enough to place the employer on legal notice of the situation. All levels of management should be trained on what steps to take once any employee reports possible harassing, discriminatory or retaliatory conduct.