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RESPONDING TO HARASSMENT COMPLAINTS
Prompt Investigation but Ineffective Response Can Be Costly
for Employers
By Amy
Koziak and Mary
Drobka
[Nov. 2004]
The Washington State Court of Appeals recently
reaffirmed that an employer’s corrective action in response
to a harassment complaint must not only be prompt and adequate,
but effective. The Court of Appeals
decision affirmed a $500,000+ jury verdict for a Costco employee
in a sexual harassment case alleging hostile work environment
claims under the Washington Law Against Discrimination. Perry
v. Costco Wholesale, Inc.
Perry worked for Costco in its optical lab in Tukwila. Her
alleged harasser, Smith, was a non-supervisory co-worker who
was also friends with her husband, another Costco employee.
According to Perry, Smith began to make inappropriate sexual
comments and gestures after her husband transferred to another
location. Perry admitted not immediately reporting these allegations
to Costco. At some later point, Smith exposed himself to Perry
in the parking lot, insinuating that they should engage in sexual
conduct and causing her to feel physically threatened. Perry
again did not report this to Costco or anyone else because she
feared that her husband might physically assault Smith. Two
or three months later, however, she finally told her husband,
and then immediately reported it to her shift supervisors at
Costco.
Costco conducted a prompt investigation, interviewing Perry,
the other women who allegedly experienced similar behavior,
and Smith. Smith was suspended for three days during the investigation.
Some of Perry’s co-workers confirmed her allegations,
and in addition, reported experiencing the same type of harassment
from Smith. Smith denied all allegations. The supervisor of
the Tukwila lab found Perry credible and recommended terminating
Smith. However, after completing their investigation, Costco
management concluded that Perry’s complaints could not
be verified. Smith was transferred from the night to the day
shift and required to attend three hours of “sensitivity
training.” Perry disputed the results of the investigation
and requested a transfer out of the Tukwila optical lab, which
Costco denied. When Perry complained that at times her shift
overlapped with her alleged harasser, Costco suggested that
she begin her shift late and reduce her hours (effectively reducing
her pay). Perry finally used the internal job posting process
to find herself another position and transfer to Costco’s
Federal Way warehouse. While working at Federal Way, Perry reported
to management that Smith continued to bother her at work. Costco
confirmed Smith was coming on site, making insignificant purchases,
and also glaring at Perry. Costco simply informed Perry to “stay
away from him” and advised her there was nothing the company
could do to keep him away from her.
The Court found that “once an employer has actual knowledge
through higher managerial or supervisory personnel of a complaint
of sexual harassment, then the employer must take remedial
action that is reasonably calculated to end the harassment.”
Applying the Ninth Circuit standard for Title VII cases, the
Court held that the employer’s actions should “persuade
the individual harassers to discontinue unlawful conduct,”
and “impose sufficient penalties to assure a workplace
free from sexual harassment.” In evaluating whether an
employer’s response is effective, the Court of Appeals
held that it will evaluate the likelihood that the employer’s
remedy would stop a harasser in the future and deter future
harassment by other offenders. Although the Court of Appeals
found Costco’s actions to be prompt, the Court
concluded that Costco’s remedial response was not effective.
The Court found that there was credible evidence that the harassment
had occurred, and Costco’s refusal to transfer Perry out
of the warehouse and its subsequent reaction to Perry’s
continuing problems failed to end the harassment. In addition,
neither the sensitivity training nor the transfer of Smith to
the more desirable day shift deterred Smith or others from acting
inappropriately with other employees. Finally, the Court criticized
Costco for not offering counseling to Perry, particularly given
the evidence that some harassment did occur.
Lessons Learned
This decision contains an extensive analysis of both an employer’s
chosen discipline for an accused harasser and an employer’s
treatment of a complainant post-investigation. The Court not
only questioned the adequacy of a three-day suspension where
the investigation uncovered multiple women who experienced similar
behavior by the harasser, but also Costco’s refusal to
help Perry transfer from the Tukwila location where her harasser
continued to work. The Court also questioned whether a transfer
of a harasser from the night to the day shift qualified as discipline,
particularly when co-workers perceived this as a more desirable
shift and reported that he was happy with the change. Finally,
the Court of Appeals noted that Costco inexcusably failed to
address Perry’s concerns about the harasser’s continued
visits to her new work site, after she transferred to a different
store.
Key lessons that employers should take away from this case:
- Employers must be vigilant not only in promptly and thoroughly
investigating harassment claims, but also in designing effective
remedies and imposing disciplinary action that will end harassment
in the workplace.
- At a minimum, employers should try to resolve credibility
issues after careful consideration. Even though it may be
difficult, employers should make good faith determinations
about what actually occurred even though presented with differing
or conflicting versions of events.
- If higher management disregards the proposed recommendation
of the investigator, or the complainant’s immediate
supervisor or manager, the employer should be able to articulate
defensible reasons for rejecting the recommendations of those
closest to the situation.
- If the complaints are deemed credible, employers should
listen to the complainant, ask him or her for proposed resolutions,
and carefully consider the complainant’s suggested resolutions.
Even if not proposed, employers should explore offering counseling
to harassment complainants (including paying for the counseling
if it is not covered by insurance).
- When imposing discipline short of termination on a harasser,
employers should carefully evaluate whether the chosen “discipline”
could be perceived by others as advantageous or ineffective.
For example, transferring the harasser to another shift or
work site (and leaving the complainant status quo) should
not be viewed as a more desirable outcome by the harasser
or co-workers. Employers may need to err on the side of imposing
more rigorous remedial action, given that this Court implicitly
held that if the harassment reoccurs, it was by definition
not effective.
- Employers must be proactive in following up with complainants
to ensure that the harassment is not reoccurring, that discipline
was effective, and that it has not caused any real or perceived
negative consequences for the complainant. If the complainant
does raise additional concerns, human resources must promptly
investigate the new allegations to evaluate whether the original
resolution was truly effective or if retaliation has occurred.
If policy violations are continuing, additional discipline
needs to be considered, including the harasser’s termination.
Any questions about this Advisory should be directed
to:
This
Employment Law Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent
developments in employment law. It is not intended, nor should
it be used, as a substitute for specific legal advice as legal
counsel may only be given in response to inquiries regarding
particular situations.
Copyright
© 2004, Davis Wright Tremaine LLP.
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