Court Watch March 2001 Leading By Example: Failure to Follow the Terms of Its Own Anti-Harassment Policy Costs One Illinois Employer $25,000 Do your employees know where to turn if they are being sexually harassed on the job? If the answer is "no" or "I'm not sure," take note: the Seventh Circuit Court of Appeals recently upheld a $25,000 jury verdict finding an employer vicariously liable for a supervisor's sexual harassment of his secretary. The verdict was based in part on the fact that the company failed to tell its employees which company official they should turn to if they believed they were being sexually harassed (Gentry v. Export Packaging). The Facts Lesley Gentry worked for Export Packaging as a secretary. In the four months prior to her resignation, she claimed that her supervisor subjected her to unsolicited and unwelcome hugs, shoulder rubs and kisses on the cheek. She also claimed that he called her his "sex-retary," gave her a cartoon "365 Sexual Positions" calendar, and commented that her clothes would look better on the floor, in addition to asking her to spend the night with him. Gentry contacted the company's human resources department on two occasions to complain about the supervisor's activities, but did not use the magic words 'sexual harassment' when she complained. The company took no action to stop the harassment. But We Had A Policy, Your Honor! At trial, the company showed that it had a clear policy against sexual harassment, and that top company management and supervisors knew that sexual harassment was illegal. Unfortunately, the company did not designate a human resources person under its harassment policy to whom employees should complain. Because the company did not clearly designate someone for this position, and because the employees were never told who they should approach to file a complaint, the court found that there was a breakdown in the reporting procedure at the company. That breakdown led to the employer's inability to establish an affirmative defense under the Ellerth/Faragher line of cases. To prevail under those cases, the employer must be able to prove that 1) it took both preventive and corrective steps to address the sexual harassment; and 2) that the employee alleging harassment failed to take advantage of the available preventative or corrective measures. Here, the company’s failure to designate such an official prevented Gentry from being able to avail herself of the "preventative or corrective measures" that the policy provided. While there were three human resources people in the company, one was on maternity leave and the other two (including the director of human resources) both said that they were not the proper people to receive complaints. Therefore, the employer was unable to establish the required elements of the affirmative defense, and the jury ruled in favor of Gentry. The Employer's Appeal On appeal, the employer argued that Gentry did not specifically complain to management that she was being "sexually harassed." According to the Seventh Circuit, employees are not required to say "sexual harassment" in order to trigger the employer’s duty to investigate a claim. "Some employees may not be conversant or comfortable with the term and we should not place a specific language requirement on an employee when he or she is already presumably facing a difficult situation." Here, the overall content of the allegations should have placed this employer on alert. Additionally, because the employer failed to designate a management person to receive harassment complaints, Gentry was unable to take advantage of any remedial measures the employer might otherwise have provided. Because the employer was unable to establish his affirmative defense in this instance, the Seventh Circuit affirmed the jury's award of $10,000 compensatory damages and $15,000 in punitive damages. How To Prevent This From Happening To You Get a policy against sexual harassment in place, and be sure your employees are given a copy and understand that the company will not tolerate sexual harassment. Then read the policy "know your duties under the policy and be sure that the company actually follows the policy. Also, don't wait to hear the words "sexual harassment" in a complaint" if it walks like a duck and quacks like a duck, it might be a duck even if it doesn't call itself a duck. Investigate complaints as they come in--do not wait for multiple complaints before addressing a potential problem. As you investigate the complaint, take good notes and keep them. Good notes and good record keeping by management will often be viewed favorably by courts and juries. Good faith actions may be used to defend against a plaintiff seeking an award of punitive damages. Ultimately, you must be reasonable. The Seventh Circuit noted that it had serious doubts about the employer's "good faith efforts" to deal with this employee's complaint. Top management officials knew that Gentry's manager had improperly touched his female employees. In fact, company management saw the supervisor engaging in improper conduct, heard him make sexual remarks and knew of prior harassment allegations against him by other female employees. These observations, combined with Gentry's complaints, should have persuaded management to begin an investigation even without Gentry specifically calling the supervisor's acts "sexual harassment." Because the employer did not follow its policies, and did not investigate although it knew of the supervisor's current and prior "bad acts," the court found that this employer did not act in good faith with regard to this female employee.