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ABA Litigation News
VOL. 24, NO. 3 (MARCH 1999)

SEX EDUCATION FOR CLIENTS?
DECISIONS REQUIRE HARASSMENT
POLICIES, TRAINING

ELIZABETH ROTH
Litigation News Associate Editor

Sexual harassment law is clearer now, employment lawyers agree, since two landmark U.S. Supreme Court decisions last June. And communicating how to avoid exposure for sexual harassment tops the to-do list of employment law specialists.

In the virtually identical and much-scrutinized key language in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton (see Litigation News Vol. 24:1 (November 1998) for extended discussion of these two cases), the Supreme Court said that employers may have an affirmative defense to liability and damages if they can prove (1) they exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Ellerth and Faragher provide little guidance on how employers can prove the affirmative defense and what type of evidence they can use. Many attorneys agree, however, that employers must do at least two important things: implement a policy and train managers. "Our Firm has set up an 800 number, and we are all seriously engaged in training and education," says Herbert E. Gerson, Memphis, TN, former Co-Chair of the Section of Litigation's Employment and Labor Relations Law Committee.

"Since the burden will be placed on employers to prove that they exercised reasonable care to correct any sexually harassing behavior, consideration should be given to training those responsible for investigating such behavior when it is brought to the attention of the employer," says Jeffrey I. Kohn, New York City, Chair of the Pro Bono Subcommittee of the Section's Employment and Labor Relations Law Committee.

"Employers must train supervisors on the proper methods for handling a complaint of sexual harassment," adds Matthew B. Schiff, Chicago, Chair of the Worker's Compensation Subcommittee of the Section's Employment and Labor Relations Law Committee.

Education of the work force is crucial, advises Section member Sharon Snyder, Baltimore. She characterizes the Supreme Court cases as "defensive relief" and counsels her employer clients to insure that their employees and their managers know what the law requires. She predicts that courts will routinely ask if managers and  supervisors were trained to identify and address sexual harassment and if those who were asked to investigate were trained in how to conduct such investigations.

Lawyers can provide effective and customized sexual  harassment prevention training for a client's particular circumstances, notes Kathleen Mulligan, Chicago, a member of the Section's Employment and Labor Relations Law Committee. She cautions, however, "In the event of  litigation, any privilege which may exist about the training itself would probably need to be waived to defend the case. The training lawyer may end up being a witness. Therefore, different lawyers should be involved in the process of assessment, advice, and designing of training, and in the training itself."

If an unfortunate incident occurs, the courts will look to see whether "the employer exercised reasonable care to . . . correct promptly any sexually harassing behavior," in the words of the Supreme Court. There is no single investigation process that will be appropriate for all cases, notes Nancy L. Abell, Los Angeles, but "promptness and thoroughness are critical." The initial choice of an investigator involves a quick and delicate judgment about issues of attorney-client privilege and work product protection. Abell cautions that "the defendant employer typically will be forced to waive the privilege so it can demonstrate that it properly investigated the allegations."  Thus she recommends that the investigator be chosen in part with a view to his or her "ability to testify clearly . . . and be received by the trier of fact as knowledgeable, impartial, thorough, and honest."

Abell notes that a 1998 California Supreme Court case has helped to clarify what is an "appropriate investigation."  In Cotran v. Rollins Hudig Hall International, Inc., the dismissed employee (the accused harasser) challenged not the manner in which the investigation was conducted, but the accuracy of the conclusion reached by his former employer.

At trial Cotran won a substantial verdict ($1.78 million) by framing the question as one of the "ultimate truth" of his "alleged misconduct."  According  to the California Supreme Court, affirming the court of appeals' reversal, however, the only fair question is "Was the factual basis on which the employer concluded a dischargeable act had been committed reached honestly, after an appropriate investigation and for reasons that are not arbitrary or pretextual?"

In Cotran the employer had conducted a swift and thorough investigation, involving interviews of 21  people in a two-week period. The court ultimately refused to permit a jury to second-guess the decision to dismiss. Lawyers—in-house attorneys, special outside counsel, or regular outside counsel—may be good choices to conduct such an investigation, Abell says. Human resources department members or outside consultants may also be effective.

Kohn's view of the Supreme Court cases is that they are road maps for employers to minimize  legal exposure on hostile environment claims. "Training programs are a relatively small investment and will pay for themselves many times over," he says.

Citations:

Faragher v. City of Boca Raton, 524 U.S. 775; 118 S. Ct. 2275; 141 L.Ed.2d 662 (1998).

Burlington Industries, Inc. v. Kimberly Ellerth, 524 U.S. 742; 118 S. Ct. 2257; 141 L.Ed.2d 633 (1998).

Cotran v. Rollins Hudig Hall International, Inc., 17 Cal.4th 93; 69 Cal. Rptr.2d 900; 948 P.2d 412 (1998).