(Published in the New Hampshire Business Review, February 2011).
Q: The manager of ABC Company, Mr. Jones, receives a complaint from an employee, Ms. Smith, that she is being sexually harassed. What does Mr. Jones need to do, and how quickly does he need to do it?
A: A recent decision out of the Eighth Circuit Court of Appeals provides employers with additional guidance on how best to respond to an employee’s claim of sexual harassment. In Alvarez v. Des Moines Bolt Supply, Inc., 8th Cir., No 09-1465 (Nov. 17, 2010), the Plaintiff, Veronica Alvarez, filed claims against Des Moines Bolt Supply, Inc. (“DMBS”) of sexual harassment and retaliation. Alvarez began working for DMBS in February of 2001. In September 2005, she began writing a journal detailing offensive conduct that she allegedly endured at work. In November 2005, she reported to her supervisor that another, non-supervisory employee, Brad Nurnberg, had made sexual comments to her. Alvarez’s supervisor twice warned Nurnberg not to make any sexually inappropriate comments to Alvarez.
On January 10, 2006, Alvarez then informed her supervisor that Nurnberg has inappropriate physical contact with her. Her supervisor wrote Nurnberg up, and decided to let upper management to determine the appropriate course of action. Ten days later, on January 20, 2006, Alvarez spoke with her new supervisor, Clint Jubell, who asked her to put her complaints in writing and then passed along the investigation to DMBS’s Operations Manager.
An investigation was launched into Alvarez’s complaints and it was ultimately determined that both Alvarez and Nurnberg engaged in behavior that was in violation of DMBS policy. Both employees were suspended, and Nurnberg was also transferred to another department. He never harassed Alvarez again.
After Alvarez returned from her suspension, she was allegedly harassed by other co-employees, but she never reported it to any supervisor or manager of DMBS. She ultimately resigned her employment in May 2006, before filing claims of sexual harassment and retaliation in the United States District Court for the Southern District of Iowa.
The District Court granted summary judgment on behalf of DMBS, finding that Alvarez (1) could not show that the reasons for her suspension were pretextual; (2) that she could not prove constructive discharge because she has never reported the harassment to DMBS; and (3) that DMBS was not liable on the sexual harassment claim because it took prompt remedial action in response to Alvarez’s complaint in January 2006 and because Alvarez had not reported the harassment. The Eighth Circuit affirmed the District Court’s decision.
This decision holds some important tips for employers when dealing with sexual harassment and retaliation allegations. First, DMBS was found not liable because it responded to Alvarez’s allegations in a timely manner. Alavarez made her allegations of improper physical contact on January 10. 2006, which the Court viewed as the date in which DMBS was notified of conduct that rose to the level of a hostile environment. The date on which the investigation began was January 20, 2006. The Court deemed this timeframe to be reasonable. Specifically the Court stated “`e`mployees often must ‘tolerate some delay,’ however, so that an employer can ‘gauge the credibility of the complainant and the seriousness of the situation.’” Significant to this decision was that DMBS’s “actions were ‘reasonably calculated to stop the harassment’”, and although she was forced to “tolerate some delay while `DMBS` investigated the complaint and formulated a remedy, `DMBS’s` response effectively ended the harassment within a reasonable time”.
Although not a substantial issue in this decision, the Eighth Circuit also addressed who should conduct investigations into sexual harassment claims. Alvarez claimed that the investigator was a friend of Nurnberg, and therefore the internal investigation was flawed. While the Court found in favor of the employer that the investigation was done in good faith, and therefore the employer could rely upon it, it does highlight an important issue that arises upon receipt of a sexual harassment complaint: who should conduct the investigation? As a best practice, employers may want to bring in an outside investigator to conduct the investigation, particularly if there is some sort of preexisting friendship or other relationship between the investigator and witnesses. Even if an internal investigator conducts an appropriate evaluation of the complaint, there may be a shadow of impropriety over his or her findings. The only way to fully avoid this is to bring in a neutral investigator with no preexisting relationships or personal beliefs about the witnesses.
The ultimate lesson from this decision is that employers must appropriately respond to any complaints of sexual harassment, and implement remedial measures. “`T`he reasonableness of remedial measures may include the amount of time that elapsed between the notice and remedial action, the options available to the employer, … and whether or not the measures ended the harassment.” Employers should respond to complaints as soon as possible, but may take time to determine the appropriate method of investigation. Upon completion of the investigation, employers should use reasonable methods to end the harassment. Depending upon the severity, it may be as simple as separating two employees but could go as far as termination of employment.
Katie Kiernan is an attorney in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. Katie can be reached at 603-628-1490 or at katie.kiernan@mclane.com. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.