September 21, 2010

The importance of HR policy development, part 1 of 3: sexual harassment

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Sexual Harassment tagged , , , , , , at 7:59 am by Tom Jacobson

Occasionally the courts decide a series of cases which, though based on completely different facts and laws, share a common thread.  When tied together, the cases teach a valuable lesson that applies across the board.  So it is with sexual harassment, unemployment, USERRA and FMLA cases decided over the last several weeks.  Their common thread:  developing and applying effective employment policies is crucial to business success.

In the first of this three-part series, the topic is sexual harassment; the case is Cross v. Prairie Meadows Racetrack and Casino, Inc.  In this case, Lucy Cross alleged that she was sexually harassed while working as a parking valet for Prairie Meadows.  She described a work environment where, among other things, there was horseplay directed at her, an incident of inappropriate touching, and at least one sexually graphic conversation.

Prairie Meadows had zero tolerance for sexual harassment, and its policy listed various ways that employees could seek help if they experienced harassing or violent behavior.  The remedies included talking to a supervisor or directly contacting the human resources department.  The policy also provided that if an employee was unhappy with the resolution of her complaint, s/he could address his/her concerns to upper level management and the company CEO.

Cross read the policy and testified that she was aware that there were multiple effective avenues for reporting harassment.  Cross reported some of her concerns to the company, and the company followed up on them.  Despite the company’s policies which provided many other avenues for obtaining relief, Cross did not pursue them.

The court threw out Cross’s case because the company had followed its policy and responded appropriately to Cross’s complaints while Cross herself did not take reasonable steps to prevent the harassment or lessen the harm.  The court specifically noted that when an employer’s sexual harassment policy provides multiple effective avenues for reporting misconduct, a reasonable employee, after realizing that her initial complaints were ineffective, would then seek another remedy.

Cross vs. Prairie Meadows stresses that having and following a well-written sexual harassment policy can provide an effective defense to sexual harassment claims.  This will help satisfy the employer’s obligation to take prompt remedial action designed to end the harassment.  Moreover, it stresses that an important element of an effective sexual harassment policy is providing multiple avenues of relief for the aggrieved emploee.

Next in this series:  how strong personnel policies impact eligibility for unemployment benefits.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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