Harassment policy alone not sufficient to utilize Title VII defense
A recent case out of the Fifth Circuit Court of Appeals serves as a useful reminder of the importance of regular training on harassment policies and procedures.
In Pullen v. Caddo Parish School Board, the plaintiff, Kandice Pullen, claimed that she was sexually harassed by her supervisor, Timothy Graham, intermittently over a two-year period. At the time, Ms. Pullen did not report the harassment to anyone in the office. However, another female employee later filed an internal complaint about Mr. Graham and identified Ms. Pullen as a person subject to similar harassment by Mr. Graham.
Ms. Pullen subsequently filed a lawsuit against the School Board in state court, which the School Board removed to federal court. The district court granted summary judgment for the School Board, concluding that it had successfully established the Ellerth/Faragher defense. Under Title VII, an employer is normally strictly liable for a supervisor’s harassment of a subordinate. The Ellerth/Faragher defense allows employers to avoid liability for certain claims of harassment by a supervisor where: (1) the employer exercised reasonable care to prevent and correct sexual harassment; and (2) the employee unreasonably refused to take advantage of remedial opportunities offered by the employer.
The district court concluded that the first element was satisfied by the School Board’s adoption of a detailed harassment policy, which included complaint mechanisms and was posted on bulletin boards and online. As to the second element, the district court concluded that Ms. Pullen acted unreasonably in failing to report the harassment for almost two years. Accordingly, the district court granted the School Board summary judgment dismissing Ms. Pullen’s claim.
On appeal, the Fifth Circuit reversed and remanded the case for further proceedings. According to the Court of Appeals, the district court erred in concluding that the School Board’s efforts to prevent sexual harassment – namely its harassment policy – were reasonable as a matter of law. Although the School Board maintained a harassment policy that was posted on bulletin boards and online, Ms. Pullen had presented evidence (including testimony from other employees) that employees were not aware of the policy, were not aware of where to find the policy, were not trained on the policy, and were not aware of whom to contact regarding harassment. In light of this evidence, the Court of Appeals concluded that there was a factual dispute as to whether the School Board actually exercised reasonable care to prevent harassment.
As the Fifth Circuit’s decision demonstrates, crafting a detailed harassment policy is certainly important, but by no means the end of the road. It is not sufficient to merely provide employees a copy of a handbook containing a harassment policy at the time of hire. Rather, to take advantage of the Ellerth/Faragher defense under federal law, an employer should regularly take steps to ensure that its employees are aware of its efforts to prevent and correct harassment in the workplace, including regular training on the harassment policy and complaint mechanisms.