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
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.
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