Almost 20 years ago, the United States Supreme Court provided employers with an important defense to harassment claims under Title VII of the Civil Rights Act of 1964. Under that defense, even if impermissible conduct occurs in the workplace, an employer can avoid liability by maintaining an effective policy against harassment. Even though two decades have passed, I still occasionally encounter an employer who has not adopted an anti-harassment policy. A recent decision from a federal judge in Alabama demonstrates the wisdom of adopting such a policy.
In Garrett v. Tyco Fire Products, LP, No. 2:16-cv-00372-SGC, 2018 WL 1319060 (N.D. Ala. Mar. 14, 2018), Tyco was sued by six African-American employees for racial harassment. Magistrate Judge Staci Cornelius conducted an extensive review of each employee’s claims, and found that three of them potentially were exposed to the types of severe and pervasive conduct that that are impermissible under Title VII, as well as another law, 42 U.S.C. § 1981. They each heard, or were called, “boy” and the “n” word “constantly,” saw racial grafitti in Tyco’s bathroom and saw lightning bolts and other Nazi paraphernalia.
Nevertheless, Judge Cornelius found that Tyco was not liable, because of its effective anti-harassment policy. Importantly, employers cannot just slap a policy on the books and expect to avoid liability. Instead, the policy needs to be comprehensive, well-known to employees, vigorously enforced, and provide alternate avenues of complaint (so that an employee is not forced to complain to a harassing supervisor). Tyco’s policy was effective because it did those things, and it was disseminated to all employees through orientation, training, publication in the employee handbook, and postings throughout Tyco’s facilities. Despite that well-disseminated policy, none of the employees made a harassment complaint to Tyco. And, because they failed to complain, their harassment claims were barred.
Judge Cornelius’s decision demonstrates that Alabama employers will benefit from adopting effective, well-disseminated anti-harassment policies. Importantly, if an employee makes a complaint under such a policy, the employer is further required to diligently investigate any complaint and take “prompt remedial action” that is reasonably likely to prevent the misconduct from recurring.