Printer Friendly Version

RHOADS & SINON LLP ATTORNEYS AT LAW
ONE SOUTH MARKET SQUARE
P.O. BOX 1146
HARRISBURG , PA 17108-1146
www.rhoads-sinon.com

David F. O’Leary’s Direct Dial: 717-231-6633
FAX: 717-231-6637

Email: doleary@rhoads-sinon.com

Employment & Labor Law Group

TO: Clients, Friends and Colleagues of Rhoads & Sinon

FROM: David F. O’Leary

RE: Employment Law Note #5. Anti Harassment Policies. To Whom in Management Should Employees Report Allegations of “Hostile Environment” Harassment? (March 2003)

Periodically (no more than once a month), I write a brief essay on an employment law issue in which I am interested. I try to provide practical advice. Please do not hesitate to contact me if you have any questions or comments.

Anti Harassment Policies. To Whom In Management Should Employees Report Allegations of “Hostile Environment” Harassment? 

Most employers know they should have antiharassment policies in writing which are distributed to all employees and which explicitly say that the employer prohibits unlawful harassment in the work place on the basis of sex, age, race, national origin, religion, disability, etc., and that if an employee believes that he or she is being unlawfully harassed, the employee should complain to the employer.

Antiharassment policies are necessary because absent promulgation of such policies, an employer will probably be held liable for the actions of a rogue supervisor or a coworker who creates a hostile environment for an employee even if the employer is completely unaware of the hostile environment. The law requires the employer to clearly tell employees that it will not tolerate unlawful harassment and encourage employees to complain about harassment without fear of retaliation so as to provide the opportunity for the employer to promptly stop the harassment and, coincidentally, escape liability for the harassment.

In the past, some employers made the mistake of telling employees that complaints of harassment should go up a chain of command starting with the employee’s immediate supervisor. These policies obviously failed when the immediate supervisor was the person about whom the employee was complaining. Under those circumstances, an employee could justifiably claim that the antiharassment policy was useless and could be ignored.

Today, most antiharassment policies permit employees to complain about harassment to virtually anyone in management including immediate supervisors. I think a better policy is to explicitly tell employees that they may complain to their immediate supervisors or other members of management but that employees must also report the harassment to an identified person or persons in the human resources department of the company.

Permitting an employee to complain to virtually anybody in management without requiring the employee to report the harassment to any particular person can produce unintended bad results for the employer. Often times, if an employee is being harassed by a coworker or by a low level supervisor, the employee may feel more comfortable complaining about the harassment to another low level supervisor who is not experienced or interested in handling complaints about harassment. Inaction or incompetent action can be the result. If that happens, the employee can justifiably claim that he or she followed the antiharassment policy but the employer failed to take prompt and effective remedial action. That spells liability for the employer in the employee’s “hostile environment” harassment case even if persons who could have taken effective remedial action were completely in the dark about both the unlawful harassment and the employee’s complaints about the harassment.

I have seen cases where a female employee was harassed by a male coworker. The employee complained to an immediate supervisor about the harassment. The supervisor did not act or acted ineffectively in investigating or forwarding the complaint up the chain of command to persons who could actually handle the complaint. Meanwhile, the alleged harassment continued and the employer was eventually faced with unpleasant liability problems because of the supervisor’s failure to take effective action. This type of scenario unfolds repeatedly where an employer operates out of more than one physical location. In those situations, I think it is particularly risky for an employer to expect that allegations of harassment will be handled effectively by local management, acting autonomously.

A better approach, in my opinion, is to tell employees that they may complain to a number of persons in management about unlawful harassment, but at a minimum, they must complain to the Human Resources Department.

I recently read a case where a former employee of AOL sued AOL because an AOL coworker allegedly harassed the employee by creating a hostile environment. She alleged complaining to her immediate supervisor (a male) about the harassment who told her “not to make waves” and that she should “expect that kind of thing” in a “man’s environment.” The harassment went on for approximately one year before she brought the harassment to the attention of the human resources manager. Within a week, the male harasser was terminated. The female employee filed a sexual harassment lawsuit against AOL but the U.S. District Court dismissed the lawsuit on the grounds that the AOL antiharassment policy explicitly told employees to complain to the Human Resources Department about harassment. The female employee had failed to do so for nearly a year and therefore AOL should not be held liable for the alleged harassment because the company was not on notice of the harassment and when the employee finally notified the company the company took prompt action. Carter v. America Online, Inc., 83 FEP Cases, 757 ( USD Ct., FL 2001). It’s no comfort to Time Warner/AOL shareholders, who have taken a bath in the stock market, but AOL’s human resources are still ahead of the curve.

Conclusion and Recommendation

Although antiharassment policies should tell employees that they may report unlawful harassment to a number of persons in management, I recommend that the complaining employee be told that in addition to the persons to whom the employee may complain about harassment, the employee must complain to the Human Resources Department unless the harasser is the Human Resources Manager, and in that event, to the CEO or COO. Employers should check their antiharassment policy and make the appropriate changes.