Under Title VII of the Civil Rights Act of 1964, an employer may be liable for sexual harassment by a supervisor with authority over the victimized employee. When no tangible employment action against the employee is involved, the employer may raise an affirmative defense to liability that (a) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Typically, the first element is met where the employer shows that its employees were notified of a comprehensive no-harassment policy, and that its managers were trained to and did administer the policy effectively. However, proving the second element may be well-nigh impossible where the employee complains shortly after a single incident. Not surprisingly, commentators and employers have questioned why an employer should be held liable in situations where it promptly investigates the matter and takes effective action to prevent a recurrence.
This question was recently put to the United States Court of Appeals for the Eighth Circuit in McCurdy v. Arkansas State Police, 375 F.3d 762 (2004). McCurdy sued the Arkansas State Police alleging that it was liable for sexual harassment by her supervisor, Sergeant Hall, on one occasion at the start of her shift. Within hours, McCurdy reported the incident to the highest ranking officer on duty who, in turn, notified his supervisor, a Lieutenant, at home. They ensured McCurdy would have no contact with Hall over the weekend and on Monday the Lieutenant and her Captain interviewed McCurdy, Hall and several others.
Rather than continue the investigation themselves, the Captain and Lieutenant asked the Special Investigations Unit (Internal Affairs) to intervene. After completing its investigation, the SIU concluded that Hall had violated State Police policies and recommended demotion to the rank of Corporal, counseling for his behavior, and one year’s probation with close monitoring by the command staff. In the meantime, Hall was reassigned to a daytime desk position so he would have no further contact with McCurdy.
The matter went to a Disciplinary Review Board which concluded that Hall had violated the State Police’s rules on coarse language and gestures, improper conduct, insubordination and truthfulness.
The State Police Director terminated Hall, informing him in writing that he had violated the State Police’s sexual harassment, insubordination and truthfulness policies. Hall appealed this decision. The Commission hearing the appeal reinstated Hall, but transferred him to another location and demoted him to corporal.
McCurdy sued the State Police for the harassment by Hall. The district court granted summary judgment to the State Police and McCurdy appealed. The Eighth Circuit held that the defendant’s "swift and effective response" shielded it from liability and that it did not need to show that McCurdy had unreasonably failed to take advantage of the remedial measures available to her.
This result is a victory for all conscientious employers. It shows the importance of having in place a well-drafted policy and a trained human resources staff to investigate the complaint and quickly take effective corrective action. Most employers have a no-harassment policy and require managers to participate in training on harassment prevention and other EEO issues. Because the law is ever-changing, however, HR managers should ask whether their policies and related practices/procedures are "state of the art."
Even if you updated your policy a few years ago, take a fresh look at the tools you have in place to prevent harassment and to respond to complaints. Because the right policies and procedures can win the case (and their absence can deprive you of key defenses), this is a litigation-avoidance matter that should not be put on the back burner.
Vedder Price is highly experienced in drafting and updating no-harassment policies, counseling employers who are responding to harassment complaints, assisting with or conducting investigations, and defending against harassment litigation. If you have questions regarding your no-harassment policy, EEO training efforts, a harassment investigation, or if you have questions about Title VII generally, please contact the author or any other Vedder Price attorney with whom you have worked.
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