Court Watch Winter 2002 RECENT COURT DECISION EMPHASIZE NEED TO TRAIN MANAGERS ABOUT DISCRIMINATION LAWS AND EMPLOYERS’ POLICIES In 1998 the United States Supreme Court cautioned employers to take prompt and effective measures to prevent and correct sexually harassing behavior by their employees in order to avoid liability in sexual harassment cases. In Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Court counseled that implementing, disseminating and enforcing a policy prohibiting sexual harassment were important steps toward this end. In the wake of Ellerth and Faragher, courts across the country have held that in addition to a sexual harassment policy, "no discrimination" and "no harassment" policies are necessary for employers to avoid exposure in other types of discrimination and harassment cases. As a result, many employers wisely reviewed their no harassment and no discrimination policies to ensure that they contain the elements valued by the courts, such as descriptions of the types of behavior prohibited, no retaliation provisions and specific, yet flexible, complaint procedures. Two recent cases demonstrate, however, that merely having a no harassment or no discrimination policy – no matter how well-drafted – will not insulate an employer from liability in discrimination and harassment cases when management itself is not trained on the applicable discrimination laws and the employer’s own policies. In Mathis v. Chevrolet, Inc., the United States Court of Appeals for the Seventh Circuit (which covers the states of Wisconsin, Illinois and Indiana) considered the appeal of a failure to hire age discrimination case in which the plaintiff had won a $100,000 jury verdict. On appeal, the employer contested that portion of the jury’s verdict – $50,000 – awarded because the jury found that the employer willfully violated the Age Discrimination in Employment Act ("ADEA"). The evidence at trial showed that the employer’s General Manager did not even know that it was illegal to discriminate against an individual on the basis of age. The Court cautioned that "leaving managers with hiring authority in ignorance of the basic features of the discrimination laws is an ‘extraordinary mistake’ for a company to make, and a jury can find that such an extraordinary mistake amounts to reckless indifference." In its defense, the employer argued that it had made a good faith attempt to comply with the statute because its employment application contained a disclaimer stating that the ADEA prohibited discrimination against individuals over 40 years of age. The Court disagreed, noting that this evidence appears more harmful . . . than helpful, because the jury could easily have concluded that printing this statement on the application but then making no effort to train hiring managers about the ADEA shows that [the employer] knew what the law required but was indifferent to whether its managers followed that law. Not surprisingly, the Court affirmed the award of liquidated damages to the plaintiff. In Frederick v. Sprint/United Management Co., the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama) overturned the summary dismissal of an employee’s supervisor sexual harassment case, leaving the door open for a jury to find the employer strictly liable for the supervisor’s sexually harassing behavior. The employer pointed to its no harassment policy and ultimate firing of the alleged harasser in an attempt to establish the Ellerth/Faragher affirmative defense, but the Court held that questions of fact remained for a jury to decide. First, the company argued that a 1990 version of its no harassment policy applied to the plaintiff’s claims and since she had complained to supervisors not in her chain of command (who took no action in response to her complaints), rather than one of the individuals identified in the policy, she had failed to take advantage of the company’s corrective measures. The Court disagreed, in light of the testimony of the company’s own Human Resources representative, who testified that a 1994 version of the no harassment policy – with a more liberal complaint procedure – applied. Second, the Court held that questions of fact remained as to whether there were legitimate reasons the plaintiff improperly lodged her harassment complaints. Namely, the plaintiff testified that she had not received either the 1990 or 1994 policies and only obtained the 1994 policy when she asked Human Resources for a copy after lodging her harassment complaint, which the company could not dispute. The lesson from these two cases is clear: training, training, training. Had the managers in these cases been trained about the basics of discrimination law and, more obviously, the company’s own policies concerning discrimination and harassment, the employers’ exposure to liability could have been greatly reduced or eliminated. Despite the clear guidance from the Supreme Court and other courts across the country, it appears that some employers still are not taking the necessary measures to ensure that their managing employees and Human Resources officials are equipped to handle even basic discrimination and harassment situations. These cases further illustrate that the costs of training supervisory employees are small in comparison with the costs of defending a lawsuit and paying a hefty damages and fees award to the plaintiff and his or her attorneys.