• Recent Federal Court Decision May Help Employers Defending Against Harassment Claims
  • December 17, 2012 | Authors: Gary D. Knopf; Laura D. Windsor
  • Law Firms: Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Richmond Office
  • When an employee files a lawsuit alleging that he or she has been subject to unlawful harassment in the workplace, employers often attempt to assert a defense, commonly known as the Ellerth/Faragher affirmative defense. This defense to Title VII harassment claims is met if the employer provides evidence that (1) the employer exercised reasonable care to prevent and correct promptly any such harassment, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

    The first prong of this defense is typically satisfied if the employer demonstrates that it has an established anti-harassment policy that is adequately communicated to employees through tools such as handbooks, postings, and training. The second prong of the defense is typically satisfied if the employer provides evidence that the employee was aware of the company policy and its reporting procedures, but failed to complain about the alleged harassment.

    What happens, however, if the employee reports the harassment, but does so incorrectly, i.e., the employee fails to complain to the specific individual or department that is identified in the company’s anti-harassment policy? Can the employer still successfully assert the Ellerth/Faragher affirmative defense? At least one federal court sitting in Mississippi recently answered that question: "Yes."

    Davis v. River Regional Health Systems

    The facts of Davis v. River Region Health Systems are fairly typical of a standard Title VII sexual harassment lawsuit, with one small (but ultimately significant) twist.

    Catherine Davis worked as a surgical technologist for River Region Health Systems ("River Region"). Shortly after Ms. Davis was hired in September 2010, she alleged that a male coworker sexually harassed her, including that he made offensive comments and sexual advances. Ms. Davis alleged that she reported the sexual harassment to her immediate supervisor on three separate occasions, but that her supervisor did nothing to stop the coworker’s conduct. In fact, Ms. Davis alleged that not only did the supervisor dismiss Ms. Davis’ accusations, but also told her that "she was hired because of her looks" and suggested that she let the coworker "rub on her in order to alleviate the hostility." Ms. Davis also asked her supervisor to transfer her to a different work area away from the harassing coworker, but the supervisor refused to do so. Ms. Davis ultimately resigned from her employment, which she characterized as a "constructive discharge," and, thereafter, sued River Region under Title VII. In the lawsuit, Ms. Davis alleged, among other things, that she was subjected to unlawful sexual harassment and that the company did nothing to prevent the behavior from occurring, even after she reported the behavior to her direct supervisor.

    As many employers do when presented with a sexual harassment lawsuit, River Region invoked the Ellerth/Faragher defense. To establish the first prong of the defense - that the company exercised reasonable care to prevent and correct promptly any such harassment - River Region successfully argued that it exercised reasonable care by establishing and implementing a policy that provided remedial opportunities to Ms. Davis. The company demonstrated that it had disseminated an anti-harassment policy that directed employees to report incidents of sexual harassment to its human resources department, or alternatively, to call the company’s "Confidential Disclosure Reporting Program Hotline" to make an anonymous report. There was no dispute in the case that Ms. Davis was aware of the anti-harassment policy: she signed an acknowledgement that she received and read the policy, she attended harassment training, and she took a quiz after the training in which she correctly responded that she must report concerns of harassment in accordance with the company policy.

    The interesting twist to the case occurred when River Region attempted to invoke the second prong of the defense and argued that Ms. Davis unreasonably failed to take advantage of the preventative opportunities provided to employees to remedy harassment. River Region did not dispute Ms. Davis’ claim that she reported the harassment to her supervisor, but argued that Ms. Davis unreasonably failed to avail herself of the corrective opportunities that the company provided because she did not report the alleged harassment to the representatives identified in the company’s policy. In other words, Ms. Davis complained, but not correctly.

    The court agreed with River Region and found that it was unreasonable for Ms. Davis to report her complaints only to her supervisor when the policy specifically provided two alternative methods to report such complaints - either to human resources or by calling the confidential hotline. The court rejected Ms. Davis’ argument that she reasonably declined to follow company policy in order "to avoid harm." The court found that, even if reporting the alleged harassment to the human resources department made Ms. Davis feel uncomfortable, she could have made an anonymous report through the Confidential Disclosure Reporting Program Hotline. Further, the court found that Ms. Davis’ failure to follow company policy was unreasonable because, rather than avoiding harm, reporting the concern to her supervisor may have actually exacerbated the potential harm. In sum, under the facts of this case, it was not reasonable for Ms. Davis to fail to utilize the employer’s harassment reporting procedures.

    Take-Away for Employers

    What does this decision mean for employers? First, this case underscores the importance of having a clear anti-harassment policy with at least two alternative methods of reporting harassment, preferably one that includes a confidential, anonymous reporting method.

    Second, the case highlights the importance of ensuring that employees are aware of the company’s anti-harassment policy, such as through anti-harassment training and signed acknowledgements that the employee read and understood the company’s harassment policy.