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BT Currents - Hot Topics in Employment Law

When Is A Sexual Harassment Policy And Training Ineffective?

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As we continue our series on sexual harassment cases, here’s a play-by-play of a recent First Circuit case, Aggannis v. T-Mobile, USA, Inc.

 

  • A customer service rep (CSR) complains to her manager that her team “coach” made a sexual comment about her outfit.  Score for the manager who reports this to HR!
  • HR follows up, but CSR says it’s no longer an issue; she stopped wearing the outfit and doesn’t want anything done.  HR drops it.  Tough call – management has an obligation to act, even if the employee says she doesn’t want anything done.  But in this case, HR legitimately may have believed the issue was resolved.
  • CSR then forwards to HR a sexually-suggestive cartoon sent by the coach.  HR counsels the coach, but court deems it discipline-lite.
  • The future plaintiff in this case, also a CSR, complains to HR that the coach touched her three times (unwelcome), stared at her in a sexual way, and on the first day they worked together, offered her a ride home.  After HR’s initial foul of telling Plaintiff to “stick it out” until the next regularly-scheduled rotation to a new coach, HR offers Plaintiff a transfer or paid time-off while HR investigates.
  • Plaintiff refuses and quits.  Score for the company!  Court rules plaintiff was unreasonable in rejecting the offer of paid time-off, nixing her constructive discharge and back-pay claims.
  • HR proceeds with internal investigation of plaintiff’s claims (good call), and learns a co-worker overheard the coach using the “c” word with two male employees.  HR disregards because it wasn’t directed at a particular female (bad call).
  • HR concludes the coach has boundary issues, but there’s no violation of the company’s sexual harassment policy.
  • In the meantime, plaintiff sues and court sends case to the jury to determine whether there’s legally actionable sexual harassment. Even though T-Mobile had a sexual harassment policy, conducted annual training and had a complaint hotline, court rules there is an issue of fact as to whether T-Mobile “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” under the Faragher/Ellerth defense.

 

What’s the end game?  Your actions need to speak louder than words. A sexual harassment policy and training isn’t worth the paper/PowerPoint it’s written on, if the organization doesn’t effectively address inappropriate behavior.

Janilyn Daub

Janilyn Brouwer Daub is a partner and the administrator of the Labor and Employment Law Department of Barnes & Thornburg LLP’s South Bend and Elkhart, Indiana offices. Ms. Daub defends employers in labor and employment litigation in federal and state courts, as well as before various governmental agencies, such as the OFCCP, EEOC and NLRB.

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