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► Sexual Harassment Complaints Require Supervisors To Act

A federal judge in New Orleans recently determined that a former employee's sexual harassment lawsuit should proceed to trial. The judge found there were triable issues on whether the employee's complaints to her supervisors should have spurred the company to act. The decision underscores the importance of training supervisors and other management employees that they must take action on complaints of harassment, even if their role is as simple as reporting the complaints to upper management or HR.

Facts Considered by the Court

The employee began working as a roustabout at a shipyard in November 2014. She was hired by the shipyard manager, and she performed general labor related to the shipyard's operations.

The employee alleged the shipyard manager began sexually harassing her in February 2015 after he assigned her to clean his office. She claimed he told her that she was pretty, said he wanted to perform oral sex on her, and grabbed her buttocks and vagina. According to her, he made unwanted sexual advances for several months, including demanding sex, offering preferential treatment for sex, exposing his genitals to her, touching her sexually without consent, and forcing her to touch his genitals. She claimed she informed her immediate supervisor about the harassment in February and March 2015.

In late March or early April 2015, the shipyard manager reassigned the employee to work as a secretary for another member of management and increased her hourly wage by a dollar. The employee alleged that the shipyard manager continued to harass her while she worked as a secretary. She informed her new supervisor of the harassment.

In May 2015, the shipyard manager reassigned the employee to work as a roustabout again. He claimed he moved her back to the roustabout position because she used her new supervisor's cell phone to take a picture of herself without permission. The employee countered that she was reassigned in retaliation for refusing the shipyard manager's advances.

The employee said the shipyard manager stopped sexually harassing and sexually battering her after he reassigned her to roustabout duties, but she also alleged that he began to incessantly ask her whether she had told anyone about his conduct. About two weeks after being reassigned, the employee stopped coming to work, effectively ending her employment with the shipyard.

Court's Ruling

The employee filed a lawsuit against her former employer and the shipyard manager, alleging in part that she was sexually harassed and the employer didn't take the necessary steps to stop the harassment. The employer and the shipyard manager asked the court to dismiss the case.

The employer, LaShip, used the Faragher/Ellerth affirmative defense to argue that it wasn't liable for any sexual harassment by the shipyard manager. Under that defense, named after two U.S. Supreme Court cases decided in 1998, an employer has the opportunity to show that:

(1) it exercised reasonable care to prevent and promptly correct any sexual harassment, and

(2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities it provided or to avoid harm otherwise.

If an employer can meet those two prongs of the defense, it can avoid liability for claims of hostile work environment sexual harassment.

The employer in this case was able to satisfy the first prong of the defense. Under the first prong, an employer generally exercises reasonable care when it "provide[s] a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense." That can be done through the publication and dissemination of a detailed written policy outlining what an employee should do if she feels she is being harassed. The employer had such a written policy.

Under the second prong, an employee generally must take advantage of a reasonable reporting process before she resigns and may be required to make multiple attempts to report sexual harassment. If the employee doesn't make a reasonable effort to report harassment, the employer can succeed under the defense. In this case, the court found there were questions of fact to be answered at trial about whether the employee unreasonably failed to take advantage of the employer's corrective policy, which required her to notify "someone who can address the issue." The policy also provided the number of a fraud and abuse hotline, which the employee didn't call.

The employee testified under oath that she first brought the harassment to the attention of her direct supervisor and then complained to him again when nothing happened. She also reported the harassment to the manager for whom she worked as a secretary. Because the court found there were fact issues on the employee's sexual harassment claim, it preserved the claim for trial. Kiera Johnson v. LaShip, LLC, Civil Act. No. 16-570 (E.D. La., 6/7/18) (Milazzo, J.).

Takeaway

This case is a perfect example of why it's necessary to train management and supervisory employees how to identify and prevent sexual harassment. Managers and supervisors cannot have the attitude that "this isn't my problem." When an employee complains to a manager or supervisor about any type of harassment, knowledge of the misconduct may be imputed to the company. Anyone who receives a complaint or witnesses sexual harassment should understand that he has a duty to report the misconduct so it can be investigated. Otherwise, lawsuits are likely, and liability is possible.

By David Theard. Mr. Theard is an associate in Jones Walker's labor relations and employment practice and an editor of Louisiana Employment Law Letter.

[8/2018]

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