Two recent cases out of federal district courts in the 7th Circuit should reinforce to employers important lessons in insulating themselves from sexual harassment claims. In both cases, the allegedly harassed employees quit before complaining about the harassment or allowing the employer to take prompt and appropriate corrective action. The cases are a reminder to employers to review and revise their harassment policies, and to make sure supervisors and employees are properly trained about harassment and how to respond to it.
On Sept. 10, in Zuidema v. Raymond Christopher, Inc. d/b/a Cinnabon, the District Court for the Northern District Illinois granted the employer summary judgment and refused to find it liable for harassment where the employee gave notice and quit before giving the employer an opportunity to take appropriate corrective action to stop the harassment.
In Cinnabon, the plaintiff, a male manager trainee was subject to allegedly same sex harassment by his trainer. The conduct consisted of inappropriate verbal remarks and come-ons from the trainer who said he liked “guys,” wanted to take him “out to the shed” and bend him over, and allegedly touched him twice inappropriately. The trainee’s female manager witnessed some of these remarks and laughed them off. After two weeks, the plaintiff gave his notice, complained about the harassment and then quit his employment. After complaining about the harassment, it stopped completely before the plaintiff’s last day of employment.
The court concluded that the plaintiff established that his work environment was objectively and subjectively offensive, and that the harassment was based upon his sex. The court also concluded that the misconduct was sufficiently pervasive to create a hostile work environment. However, the court refused to impose liability.
The court found that the trainer was not a supervisor under the Supreme Court’s 2013 decision in Vance v. Ball State and that therefore the employer could only be liable if it was negligent in failing control the work situation, i.e., in failing to take prompt and appropriate corrective action. In concluding that the employer was not negligent, the court observed that the supervisor did not have reason to know of the inappropriate conduct. The court also concluded that once the plaintiff complained, the supervisor took prompt corrective action. The court also found that the conduct the plaintiff was subjected to was not so egregious as to justify a finding of constructive discharge.
On Sept. 9, 2013, the District Court for the Central District of Illinois found that an employee who quit the day after a raunchy office party had no claim for sexual harassment she quit without reporting the sexual harassment and never returned to work. In Glemser v. Sugar Creek Realty, LLC d/b/a Pine Woods Apartments, the supervisor in charge of an apartment complex decided to throw a birthday party, with alcohol, actual or simulated sex acts, and other inappropriate behavior. The plaintiff employee’s supervisor attempted to pull down her pants, and encouraged her to wear “boy shorts” and have her picture taken in them.
The employee quit the next day and had her boyfriend demand money from the business. The employee later sued, alleging harassment and constructive discharge. The court granted summary judgment in the employer’s favor, finding no basis for liability.
The court found that the employee ended her employment the next day, never returned to work, and that she made no complaints until after she quit her employment. The court concluded that an employer cannot be expected to remedy harassment unless the employee informs the employer about the situation. The court also observed that the employer conducted an investigation after the employee quit. Additionally, the employee was aware of the employer’s harassment policy requiring that complaints of harassment be made to the company’s president, which she failed to do. The court also rejected the employee’s constructive discharge claim. The court concluded that the facts were not so egregious so as to support a claim of constructive discharge, such as a threat to her safety. Nor was she forced to resign upon threat of being terminated.
These two cases are reminders of the Supreme Court’s cautionary language advising employers to have a harassment policy in place that provides for multiple avenues to report harassment, and for the employer to put in place policies and procedures providing for prompt and appropriate corrective action. Prudent employers should have in place a well-drafted harassment policy that provides for quick, thorough investigation, and provides that there shall be no reprisals or retaliation for complaining about harassment, or cooperating in investigations of harassment.
The policy must be disseminated to employee and supervisors, and both should receive appropriate training. Supervisors must be educated to recognize inappropriate conduct in the workplace, and trained in responding appropriately even where there has not been a complaint of harassment. Supervisors must also be trained in proper investigation techniques and what constitutes appropriate remedial action.
In a sense, the employers in these cases were lucky. The employees quit before complaining of the harassment. However, an employer cannot and should not count on this. As has been noted in other columns, an employer must be ready to investigate and act, even without a complaint. As the Supreme Court has cautioned, action and undue delay in responding to harassment complaints can be fatal.