Handling Harassment Complaints in a Manner that is “More Than Reasonable”


by Aaron Clark

Clark, Aaron
aclark@mcgrathnorth.com
(402) 341-3070

A recent case from the Seventh Circuit Court of Appeals illustrates the correct way an employer should respond to a sexual harassment complaint.  In Roby v. CWI, Inc., the Seventh Circuit dismissed the harassment claims and concluded that the employer “made more than reasonable attempts” to correct the harassing behavior once it was reported.

Misty Roby worked at CWI as a cashier in Bolingbrook, Illinois. During her employment, she was subjected to several sexually suggestive comments by her supervisor. For example, when the supervisor went to her station to get money, he kneeled down in front of her and stated, “I like it down here.” On another occasion, he told Roby and a co-worker that test driving a truck got him excited and “his pants were now tight.” The supervisor also told a co-worker that Roby “wanted him.” On other occasions, he engaged in inappropriate physical contact by pressing his body against her buttocks, putting his arms around her shoulders and slapping her on the buttocks with a file. Roby did not promptly report this conduct.

When a company manager asked Roby for feedback regarding the supervisor’s performance, Roby reported for the first time that her supervisor had engaged in inappropriate conduct. The events that followed provide a good example of how employers should respond to issues of sexual harassment in the workplace. Based on the company’s actions, an affirmative defense was established on behalf of the company and Roby’s claims for harassment were dismissed. Most importantly, the company had established a sexual harassment policy with provisions for filing complaints of inappropriate conduct.  Here are the steps that were taken:

  1. The matter was immediately relayed to Human Resources and an investigation was commenced.
  2. A written statement was obtained from Roby and reviewed with her to obtain a complete account of the events.
  3. Employees were interviewed to verify the allegations, and all were instructed to maintain confidentiality. In fact, when one employee spoke about the investigation with another worker, he was terminated for breaching confidentiality.
  4. After the investigation started, the work schedule was modified so that Roby would not be required to work alone with the supervisor nor close the store in the evening.
  5. After completing the investigation, Human Resources concluded that the supervisor committed several inappropriate acts. Because there were no reports of previous incidents of harassment by the supervisor, he was issued a written warning and required to undergo anti-harassment training and reviews. He was further admonished that if he spoke with Roby about the incidents or attempted to retaliate, he would be promptly terminated.
  6. At the conclusion of the investigation, Roby received a letter from the company thanking her for coming forward and informing her that actions had been taken to resolve her complaints and concerns. She was reminded to immediately report any further incidents of inappropriate conduct to Human Resources.

After the investigation was completed, Roby requested that she never be scheduled again to work with the supervisor. Although the company was able to modify the schedule to insure that they would not have to close the store together, it was not possible to prevent her from working at the same time as the supervisor. Roby refused to return to work. She was eventually terminated for refusing to return. The court found that her actions were not justified.

Harassment investigations can be lengthy and complex. However, employers need to keep in perspective the basic steps. Employers must have a sexual harassment policy in place that requires employees to promptly report all incidents of harassment and assures them that quick action will be taken to investigate the matter. Supervisors should be trained to recognize such issues in the workplace and report them to Human Resources. Following the steps adopted by the employer in the Roby v. CWI, Inc. case will help employers to lay groundwork for defending claims and eliminating liability exposure.

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