Court Watch
June 1, 1999

If you are like most employers and are concerned about potential liability from hostile environment harassment claims, you probably have implemented a policy against harassment which contains a procedure for reporting, investigating and resolving such claims.  However, when was the last time you evaluated that policy in the context of your particular business operations?  In light of a recent decision from the United States Court of Appeals for the Tenth Circuit you may want to give that topic some more thought.

In Wilson v. Tulsa Junior College, the College had a published policy against harassment which was provided to every new employee. The policy specifically prohibited sexual harassment and advised employees to report such matters to their supervisor or the Director of Personnel Services and, if further action was needed, to the Director of Civil Rights.  The Director worked day shifts and no 800 number, voice mail or emergency number was provided.

Ms. Wilson worked the evening shift as a custodian at one of the college's several campuses in the Tulsa area.  On the evening of February 15, 1994 she was sexually harassed by her immediate supervisor (Kenneth Hall) when, among other things, he exposed himself and propositioned her.  He also threatened to return the next night for her answer to his proposition and to make her "life hell" if she refused.

When Wilson's shift was over at 1:00 a.m. on February 16, she tried to report the incident to her local police department who referred her to the Tulsa police.  After speaking with a Tulsa police officer, they arranged to meet her later that morning and fit her with a "wire" in an effort to record Hall later that night.

However, at 7:00 a.m. on February 16, the local police officer to whom Wilson had originally reported the matter contacted the campus police and told them about an "unidentified hysterical female" who had accused her supervisor of having exposed himself to  her.  The campus police did not immediately pursue the matter, but when Hall reported for work at 5:00 p.m., they alerted him that one of his female employees had made a complaint of sexual harassment to the local police.

When Wilson arrived at work on the evening of February 16, she suspected that Hall was aware of her contact to the police department.  When the two of them finally spoke about the incident Hall told Wilson that she had initiated sexual overtures to him and that he had witnesses.  He also told her to not contact the police about any of these issues.  Later that night, Hall was arrested by the Tulsa police. When Hall reported to work on the evening of February 17, he was immediately suspended.  He was then transferred to the day shift at a different campus from Wilson.  In fact, the only time Wilson ever saw Hall again after these incidents was at the court house during his criminal proceedings.  While Wilson continued to work the same shift at the same location, she came under the supervision of a Mr. Back, notwithstanding his friendship to Hall.  Wilson later resigned, sued and the jury awarded her $100,000 in damages.

As you can see, within the span of 48 hours of the first act of sexual harassment, Tulsa College remedied the situation by suspending and transferring the alleged harasser.  Even so, the Court upheld the jury's verdict and in doing so held that the school's sexual harassment policy was deficient for the following reasons:

• It did not provide a mechanism by which employees could report sexual harassment complaints after hours when the administrative offices were closed.
• It did not define a "formal complaint" as that term was used in the policy.
• It did not instruct supervision or campus police about what to do when a complaint of sexual harassment was made.

While much could be said about the abdication of personal responsibility, and about an individual's obligation to follow policies and simply call the campus administration the next day, this case shows the extent to which courts will go in imposing the burden on employers to have effective harassment policies.

When was the last time you looked at your policy to ensure that its terms were properly defined and that  its  provisions  were  appropriate  for  your  type  of operation or workforce?  For example, if you have employees from other countries with limited ability to read English what has been done to make them aware of your policies?  Do you have operating shifts when there is no one on duty with responsibility for receiving complaints of harassment?  Depending on the nature of your workforce and operations it may be advisable to review and revise your policy to conform to your particular circumstances.