Winning Harassment Claims in the #MeToo EraIn this #MeToo era, employers are, understandably, a little sensitive when someone raises a claim of harassment. Even with the heightened sense of peril, companies should remember that if they are doing the right thing—having effective policies in place and handling complaints appropriately—they can still prevail. A recent decision, Peebles v. Greene County Hospital Board and Elmore Patterson, makes this abundantly clear.

The Facts

Elmore Patterson was the CEO of Greene County Hospital’s (GCH) residential care facility. Beginning in November 2013, Wennoa Peebles was his executive assistant, as well as an accounts payable clerk in the business office. According to Peebles, Patterson created a hostile work environment in a number of ways, including his use of profanity, demeaning comments (telling Peebles she was “just part of the room” and “not to speak,” referring to female employees as “opossums” and that he would not sleep with the “opossums”), and occasional, off-handed sexual comments (such as comments about paddling a female employee’s rear end and bosom).

Peebles, who was not the only employee who raised concerns about Patterson, complained to a number of GCH board members about his behavior. In October 2015, GCH got a letter from Peebles’ lawyer noting that Peebles’ had complained about her work environment, was experiencing discrimination and retaliation, and was filing an EEOC charge. She filed the charge on November 4, 2015, alleging sex discrimination, retaliation, and a hostile work environment. About 10 days later, GCH told Peebles she should submit any complaints about her work environment to a designated board member. GCH also gave Peebles the option of transferring to her prior position (certified nursing assistant) at no loss of pay.

In January 2016, Patterson suspected that Peebles had disclosed board member email addresses. When he asked Peebles about it, she denied doing so. Patterson did some additional digging and concluded that not only had she disclosed the emails, she had lied to him about it and terminated her. Not surprisingly, Peebles believed that GCH terminated her not because of her disclosure of the email addresses but because of her protected activity.

Summary Judgment for the Employer

The district court granted summary judgment to GCH on both the harassment and retaliation claims. With regard to Peebles’ harassment claim, GCH apparently conceded that Peebles had established that she belonged to a protected group, that she was the subject of unwelcome harassment, and that the harassment was based on her sex. The court found, however, that Peebles had not established that the harassment was sufficiently severe or pervasive enough to alter the terms and conditions of employment to create a discriminatory or abusive working environment. The court explained that there are four factors to consider in determining whether conduct is severe or pervasive enough to permeate a workplace:

  • The frequency of the conduct
  • The severity of the conduct
  • Whether the conduct is physically threatening or humiliating, or a mere offensive utterance
  • Whether the conduct unreasonably interferes with the employee’s job performance

On balance, the court found that Patterson’s conduct over the two-year period, which was described in the opinion as hardly “boss of the year” material, was not sufficiently severe or pervasive. Accordingly, the court granted summary judgment in favor of GCH.

The court went on to find that Peebles failed to establish a case of retaliation, and GCH’s reasons for terminating her employment were legitimate and had nothing to do with her complaints about Patterson.

Takeaways

So, what can we learn? GCH did a lot of things right and still ended up getting sued—but they won. Here are a few things that employers should consider when a harassment complaint (or something that could be a harassment complaint) arises:

  • Effectively manage the complaints immediately. As soon as Peebles made complaints about Patterson, GCH addressed them, going so far as to designate a board member as a contact. GCH did this even though at least some of Peebles’ concerns were about bad behavior that did not clearly fall in the sexual harassment realm.
  • Take steps to stop any alleged harassment. In addition to a complaint procedure, GCH offered Peebles a transfer so she would not have to work with Patterson. While this is not always appropriate, employers should consider whether it is a viable option. You would not want to involuntarily transfer someone who complained, but giving them the option of getting away from the alleged harasser may be a good option to retain an employee and prevent a retaliation complaint. Of course, that is not what happened in this case, but it is still a good idea.
  • Don’t limit the assessment to the legal standard. Although the court relied on whether the behavior was sufficiently severe and pervasive enough to create a hostile work environment, employers should not limit their internal assessment to this legal standard. Behavior may not rise to the level of legal harassment but it can still violate a company’s harassment policy.

Making Sure Your Company Is Not the Next Harassment HashtagLike every other employment lawyer in America, I have been giving a good bit of thought to #MeToo and what it means for my clients. Many (although certainly not all) of the stories under this hashtag are about unreported harassment—egregious behavior that people did not feel comfortable reporting. My clients want to hear about a problem (and be given a chance to remedy it) before it hits Twitter or Facebook or whatever.

So, once a company has a good, solid policy prohibiting harassment (and I like to think that all of my clients do), what else should we be doing to encourage internal complaints? While this is not an exhaustive list, here are a few ideas:

  • Make sure employees know how to raise a complaint. The hotline number/email helpline/HR contact information should be widely publicized and easy to use. Make sure it is accessible to employees with disabilities or for whom English is not their first language.
  • If you haven’t done training in a while, do some. I am refocusing my training a little to talk about respect in the workplace rather than just illegal harassment prevention. Maybe the supervisor doesn’t know that it creeps his secretary out when he leans over her to look at her computer screen—but if no one tells him, he will probably keep doing it. We need to encourage employees to raise concerns before they reach a legal threshold. On the flip side, encourage supervisors to be respectful of employees’ sensibilities and not overreact if someone raises a concern.
  • Recirculate your policy and take that opportunity to personalize it a little. I had one client whose president sent an email distributing the policy, reinforcing the company culture, and encouraging people to raise concerns (even about him). They got great, supportive responses from the employees saying how much they appreciated the message. It doesn’t have to be much but should convey the following:

Our culture is that we work hard and collaboratively, and we respect our coworkers. We will not tolerate disrespectful treatment, whether it is based on sex, race or anything else. If you are experiencing a different culture, let us know.

If behavior makes you uncomfortable at work, even if you don’t think it is “harassment,” let us know so we can address it. This is true no matter who it is—coworker, boss, vendor, client, anyone. Please don’t let someone’s behavior escalate before you complain. We will handle each complaint appropriately and as confidentially as possible.

  • When you get a complaint, investigate it to the extent you can. I have had two situations in which after raising a verbal complaint, the complaining party refused to talk to our investigator. We investigated what we could and took action on what we found.
  • Don’t dismiss complaints about conduct from years ago. If someone is raising it now, you need to be sure you don’t have a current problem.
  • When people cross the line, take appropriate and decisive action to stop any harassing behavior. If you can do so with disciplinary action short of termination, that’s fine. However, if the alleged behavior is egregious and you believe it happened, you may need to fire someone.

We all think we have a good workplace culture. Now is the time to make sure our employees agree.

Happy New Year! We hope you had a joyful holiday season and your 2018 is off to a good start.

The Taxman Cometh for Sexual Harassment SettlementsAs you know, over the last few months, sexual harassment allegations have surfaced all over the place, from Hollywood to Capitol Hill to the Today Show. The hot topic of harassment in the workplace has garnered attention from employers and legislators alike, and it has prompted Senators to amend the new tax bill in an effort to curb nondisclosure agreements in sexual harassment settlements.

The Amendment Provides:

(q) PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE. — No deduction shall be allowed under this chapter for — (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.

The amendment’s proponents insist that it eliminates protection for sexual offenders in the tax code. Its critics, however, are skeptical that the amendment will make a difference, and they believe employers will still opt for the nondisclosure agreement. Additionally, another portion of the tax bill eliminates a plaintiff’s ability to deduct legal fees, so critics believe it penalizes accusers more than offenders.

This provision of the tax bill became effective on December 22, 2017, so employers (and individuals) that paid or incurred sexual harassment-related settlement payments prior to that date will generally still be able to deduct those payments as business expenses when they file tax returns in the next few months.

As new laws often do, the amendment raises more questions than it answers. It refers to settlements or payments “related” to sexual harassment or abuse. Employment lawsuits often involve kitchen sink claims—the same plaintiff may allege sexual harassment alongside medical leave interference or wage-and-hour violations. The amendment provides no guidance on deducting such expenses if only part of the settlement relates to a sexual harassment claim.

Regardless of the financial implications of the tax bill amendment, its inclusion in the tax bill marks a new era where sexual harassment claims are more prevalent and are getting closer attention from courts and the media. Rather than focusing on the tax write-off after a claim is raised, employers should focus on preventing these claims altogether by updating their policies, training, and reporting procedures.