A 5th Circuit decision involving a Louisiana school district clarifies four key points about sexual harassment.
First, the court reminds us that when the harassment is done by an employee’s supervisor, the concept of “strict liability” applies. This means the employer is liable, regardless of what a wonderful anti-harassment policy it has, and what terrific training it has provided. Strict liability is strict. However, the employer can mount an “affirmative defense” which leads to our second point.
The second point in the decision outlines the elements of that affirmative defense. This defense is only available in cases where the plaintiff has not suffered a “tangible employment action.” In other words, the plaintiff alleges that he/she was harassed, but was not fired, demoted or otherwise punished directly. If that’s the situation, then the employer can avoid liability by showing that 1) it implemented suitable institutional policies and educational programs regarding sexual harassment; and 2) the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer.
The third point made by the court hones in on what it means for the employer to institute good policies and practices. The school district in this case had a decent policy, but the plaintiff produced testimony from several long time district employees to the effect that they did not know about the policy and had never been trained on it. That was enough for the court to deny the district’s motion for a summary judgment in its favor. There was, according to the court, a factual issue that needed to be sorted out.
Finally, the case spells out what it means to be a supervisor: “A person is a ‘supervisor’ for purposes of sexual harassment law when he or she can take tangible employment action against the victim. A tangible employment action is a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
The main point for Texas public schools in this case is to get the message about publicizing its anti-harassment policies and getting people trained on them. Equally important is evidence that you have done that. It would be wise to have people sign a document to verify that they know about the school’s policy; they know who to contact if they have a problem or complaint; they know that they will not be retaliated against; and they have received training about all this. Just having an old, yellowing copy of the fine print of the policy posted in the lunchroom may not be adequate.
The case is Pullen v. Caddo Parish School Board, decided by the 5th Circuit on July 20, 2016.
DAWG BONE: IF YOUR EMPLOYEES SAY THAT THEY DON’T KNOW ABOUT YOUR SEXUAL HARASSMENT POLICIES, MAYBE YOU NEED TO DO MORE TO EDUCATE THEM.
File this one under: SEXUAL HARASSMENT