E-Newsletter

September 2010, Vol. 2

If you think your anti-harassment policy insulates you against a lawsuit -- think again!

Deborah A. Krukowski, Esq.

An August 31, 2010 decision by a District Court Judge in Milwaukee affirmed a jury verdict which awarded $105,000 to two IHOP restaurant servers, who, the jury found, were harassed by their manager. The sexual harassment case was originally brought by the EEOC and was followed by a four day jury trial.

The Company argued that it made good faith efforts to comply with Title VII by establishing a sexual harassment and diversity policy, educating all managers about sexual harassment and how to deal with complaints, and requiring employees to watch a video about the policy and sign a statement acknowledging that they saw the video and understood the policy. The statement instructed employees to report violations of the policy to their "manager or company representative."

The Court disagreed and concluded that a reasonable jury could find that such efforts were insufficient to establish "good faith effort" because the persons responsible for addressing harassment complaints, i.e., management, failed to fulfill their obligations under the policy; the Company either ignored complaints of harassment or did not take the sexual harassment policy seriously.

The Court admonished the Company for not taking steps to make sure their harassment policy was actually enforced. The employer provided their employees with some initial training about the policy, however, "they did not show that they took any steps to make sure that those entrusted with the policy's enforcement actually fulfilled their responsibilities" nor did they provide a failsafe against the danger that a manager might ignore a complaint.

The EEOC stated that "The trial and the verdict in this case should send a couple of very clear signals. The first is that, although the EEOC resolves many cases by consent decree, we are always ready to take cases to trial. The second is that when we do take sexual harassment cases to trial, juries do not shy away from requiring employers to pay large damage awards."

The August 31 decision not only affirmed the $105,000 jury verdict against IHOP, it also ordered the Company to create a new sexual harassment training program for all employees, post a toll-free number for harassment and discrimination complaints, and report to the EEOC any complaints of sexual harassment for the next four years.

This recent decision sends a clear warning to employers that having a policy against harassment is not enough -- making sure the policy is enforced, primarily through training management and employees, is necessary to prevent liability against harassment complaints.

If you have any questions regarding this or any other employment or labor law matter, contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.