Remember that AT&T ad campaign a few years ago where the mobile network provider touted how cell phone users should not have to settle for mediocre phone service?
In the workplace, however, “just ok” may be good enough when responding to employee complaints of harassment.
Hey, I’m not saying employers should aspire for “just ok,” but it can defeat a sexual harassment lawsuit.
Consider this recent Fifth Circuit decision. A female employee worked as an admin in the Division of Animal Care at a university, performing administrative duties for the veterinarians. She complained that one of the veterinarians made several unwelcome comments to her over an extended period and slapped her buttocks once.
The plaintiff emailed her supervisor about what happened, and on the same day, the supervisor called the plaintiff to discuss the situation. That’s good.
The supervisor then followed up by emailing HR. However, HR did not respond for two days. That’s not good.
So, the supervisor and the plaintiff went to the HR department and spoke with someone. That’s good.
HR explained that because the alleged harasser was faculty and the plaintiff was staff, they had to wait for the Vice-Chancellor to return from vacation to handle the complaint. That’s not good.
But the school did relocate the plaintiff away from her alleged harasser, which is good, and instructed the alleged harasser not to interact with the plaintiff (also good), only to later move the plaintiff to a smelly storage room with bugs in it, which is not good. But they did give her cans of bug spray. That’s ok.
Around that time, the Vice-Chancellor returned, and the school investigated and ultimately substantiated the plaintiff’s complaint. Then, it returned the plaintiff to her original workspace and moved the harasser.
An employer that knows or should have known of actionable workplace harassment and fails to take prompt remedial action will lose the lawsuit. Here, the defendant took some action. It was just ok.
But did it do enough?
The Fifth Circuit concluded it did because the defendant’s response was reasonably calculated to end the harassment. Specifically, it promptly took steps so the plaintiff did not have to interact with her harasser. Then, once the Vice-Chancellor returned, the defendant opened an investigation, which eventually substantiated the claims and permanently moved the harasser.
The 11 days that it took the defendant to begin investigating did not demonstrate that its response was unreasonably calculated to end the harassment because it did take preventative measures to help ensure that the harasser would not interact with the plaintiff in the interim. Plus, there was no evidence that the investigation itself — after it began — was deficient.
Again, let’s be clear. If an employee complains about harassment in your workplace, do better. “Better” can avoid a lawsuit altogether
But your response can be just ok and still defeat a claim of sexual harassment.