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Making It Count—When Employer Harassment Policies Make the Difference


Making It Count—When Employer Harassment Policies Make the Difference

The old axiom that “the best offense is a good defense” is especially true in the context of sexual harassment lawsuits, where an effective anti-harassment policy and complaint procedures are a potent tool in shielding employers from liability for supervisors’ misdeeds. Indeed, these measures can make the difference between a costly verdict or a victory at summary judgment. A recent Fifth Circuit Court of Appeals case, Pullen v. Caddo Parish School Board, highlights the importance of effectively implementing and communicating an employer’s policies and procedures.

In Caddo Parish School Board, Pullen worked at the Caddo Parish School Board (the “Board”), first in the purchasing department and later in human resources. She claimed that her supervisor in the purchasing department verbally harassed her, touched her in an unwelcome manner, and showed her inappropriate photos. She also alleged that, even after she transferred to another department, her supervisor continued to visit her and made additional inappropriate comments. Pullen never reported her supervisor’s behavior to any other employee, but eventually filed a lawsuit claiming that her supervisor’s actions constituted hostile work environment sexual harassment. 

The Board sought dismissal of the case by filing a motion for summary judgment, invoking the Faragher/Ellerth defense. Under Faragher/Ellerth, based on a long-established U.S. Supreme Court doctrine, liability depends on the type of harassment, and who committed it. If the harassment is by a supervisor and results in a tangible employment action (such as firing, demotion, or unfavorable changes in assignment), the employer is strictly liable. If the harassment creates a hostile work environment with no tangible employment action, then the employer can also be liable, but may assert a defense under Faragher/Ellerth, if it can show that it exercised reasonable care to prevent and promptly correct any harassment and the employee unreasonably failed to take advantage of the company's preventive or corrective measures, such as an established internal complaint procedure. The district court granted the Board’s motion for summary judgment under Faragher/Ellerth, but the Fifth Circuit Court of Appeals reversed. 

The Fifth Circuit premised its reversal on the grounds that, even though it was undisputed that a copy of the Board’s policy was publicly displayed at its facility—on its bulletin board—Pullen and other employees testified that they had never received a copy of the policy and were unaware that it existed. Other employees testified to the contrary, but the court held that this conflicting testimony created a question of fact that precluded summary judgment. In sum, these disputes meant that the employer failed to establish its Faragher/Ellerth defense as a matter of law and would have to proceed to trial on these claims. Notably, Pullen admitted that the Board had an internal anti-harassment and complaint policy that was, ostensibly, sufficient to meet the Board’s burden. However, she claimed that it was “not sufficiently publicized,” and thus the Fifth Circuit found that summary judgment was not warranted. 

The practical lesson from this decision is simple yet critical—employers must do more than simply draft an anti-harassment policy without ensuring that its employees are fully aware of its contents. Employers must actually distribute the policy to all employees, either via email or hard copy with a signed acknowledgment of receipt. Employers also are well advised to train supervisors and other employees on reporting procedures for alleged harassment or discrimination, and should have procedures in place to conduct a prompt, effective investigation should any harassment complaints arise. Finally, employers should review their workplace harassment policy at least once a year to ensure it complies with the ever-changing legal and regulatory environment and retrain supervisors and all employees periodically to ensure they are aware of any changes in the company’s policies, the law, and the complaint process.