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For Lynne Barrett, the harassment began in June 1997 during a business trip to Atlantic City, N.J. Her boss, she says, began with explicit sexual overtures during a hotel dinner and continued throughout the trip with more explicit comments. He then attempted to get into her hotel room when room service was delivered. On the ride home, Barrett says, he kept grabbing her leg. “You are going down a highway at 60 miles per hour, and you don’t know if he would rape you or kill you,” says Barrett, who at the time was a saleswoman at the Applied Radiant Energy Corp. (ARECO), a Virginia-based manufacturer of acrylic hardwood floors. Barrett says that the sexual harassment by her boss, Richard Ramsey, an ARECO vice president, continued back at the office until November 1997, when the company learned of his behavior. ARECO immediately investigated and fired him. This quick action by ARECO would appear to be a happy ending for Barrett. Far from it. ARECO learned of Ramsey’s behavior through an independent investigation, not from Barrett. This made all the difference for Barrett, who says she did not report Ramsey to company managers because she feared losing her job. She filed a sexual harassment suit against ARECO under Title VII of the Civil Rights Act of 1964, based on the theory that the company was vicariously liable for the improper behavior of a supervisor. But after Barrett won a $5,000 jury verdict, the trial judge, on a motion by ARECO, dismissed the suit because Barrett had failed to report the harassment to the company. Over the past few years, it has become common for women to see their Title VII suits dismissed if they have failed to report alleged workplace harassment to management, or done so too late. As a result, according to a March 2001 Fordham Law Review article that analyzes scores of such cases, a company should have a sound program designed to stop harassment on the job — but it should not be so good as to encourage employee reporting. “Employers should not engage in or should eliminate extensive preventive efforts such as expensive sexual harassment training, or more particularly, harassment reporting hotline,” the authors conclude. The article, partially titled, “Don’t Train Your Employees and Cancel Your ’1-800′ Harassment Hotline,” was written by David Sherwyn, a professor of law at Cornell University’s School of Hotel Administration; Michael Heise, a professor at Case Western Reserve University Law School; and Zev J. Eigen, now an associate at Littler Mendelson. It suggests — and some plaintiffs’ lawyers agree — that recent sexual harassment decisions in federal courts favor employers by skirting the guidelines for sexual harassment suits set forth by the U.S. Supreme Court in its 1998 rulings Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries Inc. v. Ellerth, 524 U.S. 742. In those landmark rulings, the Court said that an employer could avoid vicarious liability in a sexual harassment case — when no tangible employment action was taken against the alleged harasser — if, first, the employer “exercises reasonable care to prevent and correct promptly any” sexual harassment and, second, the employee “unreasonably” failed to report the harassment to the employer. The question is — how do you define “unreasonably”? The law review article concludes that an employee’s failure to report alleged sexual harassment under the second prong, such as in a case like Barrett’s, means a suit by an employee will always fail, so long as the employer had a viable anti-harassment program in place. The article and additional research by the authors focused on 109 post- Ellerth and Faragher sexual harassment suits, between July 1998 and March 2001, that involved defense motions for summary judgment. In all 31 cases in which the employer satisfied the first prong and the employee failed to report the harassment at all or in a timely fashion, the case was dismissed, the researchers found. ‘SHAW V. AUTOZONE’ Today, virtually all large, most midsize and many small companies have some sort of anti-sexual harassment program in place, including a procedure for an aggrieved employee to report improper behavior through a variety of channels. But however good the program, most large companies cannot avoid litigation. Tiffany D. Shaw was an assistant manager at an AutoZone store when the store manager, the only person senior to her in the facility, allegedly began making sexually explicit comments, including inquiries about whether she masturbated, according to the June 1999 decision by the 7th U.S. Circuit Court of Appeals in Shaw v. AutoZone, 180 F.3d 806. Shaw never complained of her boss’s behavior to AutoZone but quit after three weeks of the alleged harassment, in June 1995. She then sued. A federal judge in Illinois granted AutoZone’s motion for a summary judgment. On appeal, the 7th Circuit affirmed the ruling, concluding that Shaw, among other things, had failed to follow AutoZone’s complaint procedure by not reporting the behavior to a manager or executive. “While a victim of sexual harassment may legitimately feel uncomfortable discussing the harassment with an employer, that inevitable unpleasantness cannot excuse the employee from using the company’s complaint mechanisms,” Judge Daniel A. Manion wrote for the court. James W. Mertes, Shaw’s attorney, says the decision is unfair because his client justifiably feared she would lose her job if she reported the harassment. “The only person senior to her in the store was the alleged harasser,” says Mertes of Rock Falls, Ill.’s Pignatelli, Liston & Mertes. “It was an exercise in futility for her to report it.” AutoZone lawyers say Shaw had ample opportunity to report the alleged harassment to someone outside her store but chose not to. Alison Smith, who oversees labor law and employee relations at the 3,000-store chain, says AutoZone has had a comprehensive anti-sexual harassment program since at least the early 1990s and that she could have complained to someone outside her chain of command or via AutoZone’s 800 number. SCOFFING AT NAYSAYERS Lawyers who defend companies like ARECO and AutoZone scoff at the belief that the Ellerth and Faragher decisions are not being followed. They say that most employers are following the law by establishing solid anti-sexual harassment programs, often including training for managers and employees, and that the employees are then obligated to do their part. “We expect everybody to be an adult about this,” says Judith Malone, who represents employers as head of the labor and employment law department at Boston’s Palmer & Dodge. “If there’s a policy, [employees] must take advantage of it and come forward.” Malone and other employer attorneys echo what the courts have said: Employees must present evidence that justifies their fear of reporting the harassment. One scenario that might justify an employee’s silence, says Margaret McCausland, who represents employers as a partner at Philadelphia’s Blank Rome Comisky & McCauley, would occur if a supervisor or manager witnessed the harassment and nothing was done to stop it. Otherwise, she says, an employee must report the improper behavior. The authors of the Fordham article conclude that the courts do not seem to be following the standards set forth by the high court in Ellerth and Faragher. “I truly believed that people could avoid a summary judgment with the human factor — by saying they were afraid,” Professor Sherwyn, one of the authors, said in an interview. He and his co-authors said their findings provide a “perverse incentive” for employers not to put their best foot forward when establishing an anti-harassment program. These findings pose a dilemma for employers, Sherwyn explains, because now there’s a conflict over what is the best human resource policy versus what is the best way to avoid liability. He says setting up a toll-free number for employees to report problems is well-recognized as sound human resources policy, but because it could encourage more reporting, this could lead to more employer liability. “I think that’s unduly cynical,” says Bayard Harris of Roanoke, Va.’s Woods, Rogers & Hazlegrove, who represented ARECO in the Barrett case. “We advise clients to make reporting easy, to encourage reporting, to not play ostrich.” ‘GENERALIZED’ FEAR OF RETALIATION In Barrett v. ARECO, 240 F.3d 262, the 4th Circuit concluded that ARECO had a sound anti-harassment policy, took “reasonable” steps to prevent harassment and, upon learning of the improper behavior, immediately rectified the situation. They also found Barrett’s failure to report the harassment to be based on a “generalized fear of retaliation” that did not justify her inaction. She claimed her boss would fire her because he and other managers were friendly with the president of the company. The court, in its decision on Feb. 13, concluded, “We cannot accept the argument that reporting sexual harassment is rendered futile merely because members of the management team happen to be friends. Crediting this view would impose an impermissible burden on any company, especially small businesses.” Harris says he believes the real reason Barrett did not report the harassment is because Ellerth and Faragher were not decided until midway through her case and that Barrett was lying in wait for ARECO. “Why should a company be liable to an employee lying in the weeds to spring the trap?” he says. For Barrett, however, the case is simpler. What the problem really is, she says, is that the courts ignore the human side to an employee’s problem. Married with five children, she says, she and her husband, a cemetery manager, were making $55,000 combined in 1997 when she was harassed at ARECO. She says she had heard about previous sexual harassment episodes at ARECO and that, although she has since left the company for a job elsewhere, at the time she truly feared for her job if she reported it to a supervisor. She says the all-male panel of judges that decided her case just didn’t understand. “You are dealing with a group of men who couldn’t understand,” she concludes. “The concept of an average working-class person, believing they are going to lose their job, working paycheck to paycheck, struggling — they’ve never been in that situation.”

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