A recent ruling from a Tennessee appeals court reinforces that a prompt and reasonable investigation can help save an employer from liability in response to sexual harassment charges.
In a July 30, 2015 opinion, the Tennessee Court of Appeals affirmed the grant of summary judgment to an employer in Patricia Bazemore’s sexual harassment, hostile work environment case against her former employer, Performance Food Group, Inc. See Bazemore v. Performance Food Group, Inc., No. E2014-01877-COA-R3-CV, Tennessee Court of Appeals, July 30, 2015.
Bazemore alleged she was sexually harassed on two different occasions in September and October 2012 by a coworker, Barry Pearson. Although there were no witnesses to the alleged harassment, Bazemore secretly recorded portions of the two incidents. These recordings evidenced Pearson making inappropriate comments to Brazemore, which effectively incriminated him, according to the Court’s opinion.
Bazemore did not actually speak with HR about the alleged sexual harassment though until October 18, 2012. After being notified, the HR director sprang to action and instructed Bazemore to provide the details of her allegations in writing. After receiving the statement the next day, the HR director held separate interviews with Bazemore and Pearson on the next business day to try to determine what happened.
Pearson denied the allegations and Bazemore did not reveal the existence of her audio recordings that incriminated Pearson. PFG concluded its investigation, found conflicting evidence, and issued a final written warning to Pearson. In addition, HR told Pearson that he was no longer allowed to have any contact with Bazemore and restricted his access to the office (where the alleged incidents had occurred). Later, after a chance run-in with the alleged perpetrator, Bazemore decided to resign and sued PFG for hostile work environment and constructive discharge. Bazemore did not reveal the existence of her smoking gun audio recordings until after her resignation.
The Tennessee Court of Appeals affirmed the grant of summary judgment to PFG, dismissing Bazemore’s claims. The unanimous Court emphasized that with Bazemore not disclosing the existence of her incriminating audio recordings, the employer acted promptly and objectively reasonably in response to the sexual harassment complaint.
“We agree with the trial court that PFG’s decision to prohibit one-on-one contact between Mr. Pearson and Ms. Bazemore and restrict Mr. Pearson’s access to the office is objectively reasonable in light of the evidence actually available to PFG during the investigation . . .In the end, PFG cannot be faulted for failing to analyze incriminating evidence that was never made available to it prior to Ms. Bazemore’s decision to leave the company.”
In defeating Brazemore’s constructive discharge claim, the Court commended PFG on immediately initiating an investigation and placing restrictions on Pearson’s contact with Brazemore, which showed that PFG did not knowingly permit intolerable conditions. Further, the “preventative measures” PFG had in place made the constructive discharge claim weaker. These preventative measures included providing employees with the anti-harassment policy at the beginning of employment, required online training on sexual harassment annually, and the sexual harassment policy’s requirement of employees to immediately inform the employer of any conduct believed to constitute harassment.
This case shows that appropriate harassment policies and a prompt and reasonable investigation into a harassment complaint will go a long way toward helping an employer avoid liability.