The rules for sexual harassment, as established by the Supreme Court in Burlington v. Ellerth (1998) [544 U.S. 72] and Faragher v. Boca Raton [544 U.S. 775], make it clear that an employer is strictly liable for quid pro quo harassment, but has an affirmative defense for hostile environment harassment (that they have a policy to prevent and quickly correct such acts). Furthermore, the liability is vicarious when the alleged harasser is a supervisor, but the employer must know (or should know) about the alleged acts when the harasser is a coworker. The present case that speaks to policies related to hostile harassment is Pullen v. Caddo Parish School Board decided by the 5th Circuit on 7/20/2016 [2016 U.S. APP Lexis 13253].
Kandace Pullen, the plaintiff, claimed that Timothy Graham, a supervisor in another department, subjected her to hostile environment harassment. The district court granted summary judgment to the school board on grounds that Graham, being a supervisor in another department, was therefore a coworker, and that the board was not informed of the alleged acts. Actually, in my opinion, supervisor versus coworker distinction is not that critical if the employer has a policy to prevent and quickly correct the harassment and the alleged victim fails to use it. After all, to use it, the alleged victim would have to complain, thus notifying the employer.
But that’s not the key to this case. Pullen argued that the board’s policy, which all things considered, looked great, was not sufficiently publicized and employees were not trained on the actual policy and who to contact --- in essence, how to use the policy. Pullen had testimony from four long-time employees who were also unaware of the policy or of any training. The board argued that the policy was posted on bulletin boards and was available online.
Therefore, assuming all facts favorable to Pullen (the standard in appeals for summary judgment), the 5th Circuit overturned the summary judgment, ruling:
The board's presentation is insufficient to satisfy its burden to show that there is no genuine dispute of material fact as to its entitlement to immunity under the Ellerth/Faragher defense. Similar to the evidence in Faragher, Boh Bros., Harrison, and Marrero, Pullen presented testimony from employees who [*16] indicated that they were given no training or information about the sexual-harassment policy and were not even aware of its existence. The evidence, construed in Pullen's favor, also shows that Graham was never given a copy of the policy, never saw it, and was never trained regarding its contents.10 Moreover, the evidence generates a reasonable inference that the policy was not posted in a conspicuous location (given that several employees said they had never noticed it). Thus, just as in Faragher, Boh Bros., Harrison, and Marrero, there is a genuine dispute of material fact as to whether the board took reasonable steps to prevent sexual harassment in the central office.
The moral of the story is clear. Without the policy, you’re dead in the water. But even with it, you’re also in trouble if your employees (all of them --- perpetrators and victims alike) are (a) unaware of the policy and/or (b) are not trained on how to use it. Again, this holds for alleged victims of harassment by supervisors or coworkers.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
