Sexual Harassment Policy = Protection from Liability?

If an employer maintains a sexual harassment policy and an employee doesn't use it, is the employer then exonerated from liability for sexual harassment? A federal court sitting in Pennsylvania recently faced that issue.

What happened. A woman worked as a bus cleaner for about 9 months at the Harrisburg terminal of Capitol Trailways. When she was hired, a manager asked her to sign--but, according to her, did not explain--Capitol's sexual harassment and equal opportunity policies. He placed the signed copies in her file in a locked drawer. There was a lot of vulgar language at work, and she claimed that her boss added to it with nightly sexual comments and suggestions directed at her. He also looked at pornography on his computer and invited her to look at it.

Finally, one day when he made sexual statements to her, she gestured toward the office and said that she was going to report him. Her boss replied that the managers to whom she would report would only laugh at her. She apparently never complained, but eventually left the job because of the harassment--then sued the company for subjecting her to a sexually hostile work environment. Capitol asked the court to dismiss the case.

What the court said. Two questions before the court were: (1) whether the work environment alleged was sufficiently hostile and severe to keep the case in court; and (2) whether she unreasonably failed to use Capitol's sexual harassment policy. On the first issue, the court said that there was enough information about the alleged harassment to allow the case to go forward. On the second, the woman argued that the sexual harassment policy was ineffective and that Capitol discouraged her from using it.

She stated that she only had a few minutes to review the policy, that most of the time it was stored in a locked file cabinet, and that management (her sexually harassing boss) discouraged her from making a report. The court noted that Capitol took no affirmative steps to prevent sexual harassment by its managers and provided no sexual harassment or nondiscrimination training to its employees. The court found a genuine issue of material fact as to whether Capitol acted reasonably to prevent harassment by implementing an effective nondiscrimination policy, and that a jury could find that she did not unreasonably fail to use the policies. Tillison v. Capitol

Bus Company d/b/a Capitol Trailways, U.S. District Court for the Middle District of Pennsylvania, Civil No. 1:CV-06-2004 (7/8/08).

Point to remember: The existence of a locked-away sexual harassment policy that employees are discouraged from using will not protect an employer from liability for claims of sexual harassment.