A recent opinion from the U.S. Court of Appeals for the Eleventh Circuit provides good reason for employers to make a robust effort at maintaining and disseminating a policy against discrimination and harassment. Most employers probably already have such a policy. But if it is not comprehensive in scope, and if it is buried in a handbook given to employees only at the time of hire, it may not provide the expected protection against claims of harassment.

When did you last take a critical look at your company’s policy and distribution channels?

In Banks v City of Atlanta, the Eleventh Circuit affirmed summary judgment for the City and dismissed claims of sexual harassment filed by four employees. Because the alleged harasser was a supervisor, to secure this dismissal the City had to establish each element of what is commonly referred to as the Faragher/Ellerth affirmative defense. This required proof that (a) the City exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) the complaining employees unreasonably failed to take advantage of the preventive or corrective opportunities provided by the City. Although the Faragher/Ellerth affirmative defense is of little use when an employer knows of harassing conduct and fails to take prompt corrective action, it can absolve an employer of liability for previously unknown harassing conduct – for example, conduct not properly reported pursuant to the company’s policy.

In Banks, the evidence showed that the employees failed to report their supervisor’s harassing conduct for periods ranging from a few months to several years. They claimed the City knew or should have known of the improper conduct, but they failed to provide evidence of that. As a result, the door was open for the City to present undisputed facts supporting its affirmative defense and seeking dismissal of the claims without a trial.

As for the first element of the City’s affirmative defense, the appeals court relied on the undisputed facts showing that the City had adopted a comprehensive harassment policy, containing multiple avenues for reporting claims, which was distributed to employees both at the time of hire and whenever the policy was updated. The policy specifically identified the managers to whom such complaints should be made, and the court pointed out that complaints to “mid-level” managers who were not designated would probably not be sufficient to put an employer on notice of the situation.

The second element of the City’s affirmative defense was easily established by the employees’ admissions that that had not reported the alleged harassing conduct to the individuals identified by the City’s policy as authorized to receive and address such complaints. The unreasonable nature of that failure was easily established by the comprehensive nature of the City’s policy and its robust efforts at disseminating the policy to employees.

The opinion in Banks does not plow any new ground and does not establish any new or unique ripples in the law, but it serves as a reminder to make sure that your harassment policy is comprehensive in scope and that you have adequately communicated it to employees. Does your policy provide multiple avenues for reporting claims? Does it specifically identify the individuals or job titles of the persons authorized to receive such complaints? Has it been updated in the past several years? Are employees periodically provided with copies or reminded of its existence? Or is it outdated with the only evidence of dissemination an acknowledgment secured at the time of hire? If the latter, you may be disappointed with the outcome should your company need to rely on the Faragher/Ellerth affirmative defense to avoid liability for a claim of harassment.

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