The litigation value of your antiharassment policy

published in Oklahoma Employment Law Letter | November 1, 2011

As lawyers, we constantly remind clients of the importance of having and enforcing an effective antiharassment policy. Not only does it help enforce appropriate workplace behavior, but it also provides a good defense if inappropriate behavior occurs. On September 7, 2011, the Tenth U.S. Circuit Court of Appeals (which includes Oklahoma) reaffirmed the value of having such a policy when you’re sued for sexual harassment. The case involved a longtime administrative assistant and a state district court judge for whom she worked. From an employer’s perspective, the facts of the case are about as bad as it gets.

The value of a good policy

Christie Helm was hired in September 1998 to work as an administrative assistant for two judges — Frederick Stewart and Robert Bednar. Apparently, Stewart began harassing her shortly after she was hired. According to Helm, he touched her rear end, thighs, and legs, and in 1999, he forcibly kissed her in front of the courthouse.

Helm took a medical leave of absence in the early spring and summer of 2006. When she returned, the harassment escalated. Specifically, Stewart began regularly closing his office door and kissing her and telling her he wanted to have sex with her in his chambers. On one occasion, he put his hands up her skirt and penetrated her with his finger. In June 2007, he twice unbuttoned her shirt and fondled her breasts.

In mid-2007, Helm told the chief judge that Stewart had done “something inappropriate.” However, she failed to provide any details, and she didn’t mention sexual harassment. The chief judge advised her of the complaint procedure and assured her that she would have the full support of the state if she made a complaint. He also told her he was required to report any harassment. Later that day, Helm advised the chief judge that she didn’t wish to pursue the complaint because she had spoken with Stewart and resolved the matter. As a result, he didn’t take the complaint any further.

In August 2007, before returning from another medical leave, Helm made specific sexual harassment allegations to another judge, who contacted the chief judge and another individual. The chief judge immediately reported the issue to the Office of Judicial Administration, and an investigation ensued. In the meantime, the state made plans to adjust Helm’s duties when she returned so she wouldn’t have to work for her alleged harasser.

However, Helm was arrested for an incident unrelated to her harassment claim while she was still on leave. The arrest resulted in her no longer being able to perform some of her job duties (e.g., accessing criminal history records), and her employment was terminated. She later sued for sexual harassment.

Helm argued that the state failed to act reasonably in conducting its investigation. She also argued that her termination was linked to her complaint. The court disagreed, holding that the state acted promptly and reasonably in handling her complaint. It also determined her termination was for a reason unrelated to her complaint. Accordingly, the state was found not liable for Stewart’s actions. Helm appealed to the Tenth Circuit.

Tenth Circuit’s decision

The Tenth Circuit upheld the lower court’s ruling that the state of Kansas (Stewart’s employer) wasn’t liable for the harassing behavior. The court based its decision on an absolute defense known as the Faragher / Ellerth defense. The idea behind the defense is that an employer shouldn’t always be liable for the rogue acts of its employers, including its supervisors. Rather, an employer can avoid liability for sexual harassment if it can show by a preponderance of the evidence that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The defense is available only when the alleged harassment hasn’t culminated in a tangible employment action like termination or demotion.

The first part of the defense requires the employer to prove two things: (1) It makes reasonable efforts to prevent sexual harassment in the first place and (2) it made a reasonable effort to correct any sexual harassment that occurred. That’s where an employer’s antiharassment policy comes in.

Courts have made it clear that having a valid sexual harassment policy goes a long way toward showing an employer tried to prevent sexual harassment. The policy needs to not only prohibit sexual harassment but also contain a meaningful reporting mechanism. Additionally, it must include a provision stating that retaliation for making a complaint under the policy will not be tolerated. In other words, employees should be able to read the policy and understand exactly what is prohibited and what is expected of them in the event that harassment occurs. You should consider including in your policy examples of what constitutes sexual harassment as well as options for employees to make a report.

But having an antiharassment policy isn’t going to help you if employees don’t actually receive it, so you need to ensure the policy is disseminated. In this case, the state’s antiharassment policy was contained in its employee handbook, and employees were required to sign a document stating they had read and understood the policy. However only management-level employees received training on the rule.

As is usually the case, Helm argued that even though she signed the acknowledgment form, she never read the policy and was completely unaware of its existence. The Tenth Circuit rejected her argument, finding that (1) she at least had “constructive knowledge” of the policy — that is, the employer put it in her hands, so she couldn’t undermine it by refusing to read it — and (2) the state had taken reasonable actions to prevent sexual harassment.

Effective policy, prompt remedial action save the day

This case teaches the critical importance of having an antiharassment policy (the first requirement of the Faragher/Ellerth defense) and provides instruction on the steps you should follow when disseminating your policy. The policy should be emphasized. You should always get a signed acknowledgement from your employees reflecting receipt of the policy. That makes it almost impossible for a worker to later deny knowing of its existence, thus establishing constructive knowledge. Additionally, you should provide training on the policy to both management and nonmanagement employees. While it’s not required, it certainly goes a long way toward preventing harassment.

The second element of the Faragher/Ellerth defense requires you to show that you took reasonable steps to correct any harassing behavior. That means taking immediate action to address the issue. The state’s actions in this case illustrate two things. First, you must follow your policies and take immediate action to address any complaints. Frequently, that means separating the accuser and the accused during the investigation. Once the investigation is complete, you must follow through appropriately.

Second, this case makes it clear that you are not without the ability to discipline an employee for workplace violations, even if she has a harassment complaint pending. The key is to make sure that any discipline is truly separate from the complaint, which the state did when disciplining Helm. Christie Helm v. State of Kansas.

A good defense is easy

Finally, this case stands as a reminder that having (and following) an effective sexual harassment policy is a simple and strong litigation tool if you get sued for harassment. You can’t control everything your employees do at work, but you can protect yourself by taking reasonable measures to prevent harassment from occurring and acting appropriately if it does occur. Bottom line: You should (1) have an effective harassment policy, (2) provide training on the policy, (3) require employees to acknowledge in writing that they have read and understand the policy, and (4) act promptly if any harassment complaints are made.