A recent case reminds employers how important it is to have anti-harassment policies and to take appropriate corrective action in response to complaints. Harris v. Petsmart Inc. (E.D. Ky. 2012).
Dog trainer Shawn Harris was subjected to offensive conduct from another male employee while at work and off-duty. He complained to store management and called Petsmart’s complaint hotline. Upon receiving the complaint, Petsmart immediately began an investigation and promptly fired the perpetrator.
In Harris’s suit against Petsmart for same-sex harassment, a question arose over whether the perpetrator was Harris’s supervisor or a co-worker. The court analyzed both scenarios and determined that, either way, Petsmart was not liable.
Employers are liable for harassment by co-workers when they know or should know about the harassment and fail to take prompt and appropriate corrective action. The court held that Petsmart did not know and should not have known of the harassing behavior until Harris complained. Once Petsmart knew of Harris’s complaint, it conducted a prompt investigation and took appropriate corrective action.
To avoid liability for harassment by supervisors, however, employers must show a two-part affirmative defense. This is sometimes called the Faragher/Ellerth defense, for the cases that originated it. First, the employer must show that it exercised reasonable care to prevent and correct any harassing behavior. Second, the employer must show that the employee unreasonably failed to take advantage of the employer’s preventive or corrective measures. The court found that Petsmart had a strict anti-harassment policy in place clearly prohibiting the harassing behavior. The policy had “multiple avenues for bringing harassment to the employer for remediation,” including the hotline that Harris used. The court added that Harris knew about the anti-harassment policy and the employer responded quickly and took corrective action once Harris complained.
Petsmart escaped liability because it had established a strict anti-harassment policy, communicated that policy to its employees, responded promptly to a complaint, and took corrective action after investigating the complaint. MSEC recommends that employers review how they deal with or will deal with harassment complaints to ensure that they are in a similar defensible position.