Winter 2005Newsletter

Can You Depend on Your Supervisors and Managers to Properly Respond to a Harassment Complaint?

Employment Update

Most employers have general harassment and/or sexual harassment policies that explain harassment, indicate the employer's firm commitment to maintaining a harassment-free workplace, and identify one or more employees, usually management level or human resources personnel, to whom an employee who feels he or she has been harassed should submit a complaint ("Contact Person(s)"). All of those components are vital for employers who want to prevent harassment in the workplace and protect themselves from liability. As you undoubtedly know, an employer will be liable for harassment where it fails to take prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring once it is appraised of the harassment.

One key step that employers frequently overlook is properly training Contact Persons about harassment and how to handle harassment complaints. Employers need to make sure that they can trust their Contact Persons to follow the instructions and training they have been given on how to deal with a complaint. Even the most conscientious employer cannot escape liability when one of its Contact Persons fails to report, investigate, or promptly address a harassment complaint. This risk to employers is exemplified in the recent case of Prindle v. TNT Logistics of North America, decided by Judge Crabb, Chief Judge of the United States District Court for the Western District of Wisconsin.

Becky Prindle, an employee of TNT Logistics of North America who worked on its loading docks, complained to various managerial and supervisory staff about several instances of sexual harassment by a co-worker occurring between April and August 2001. The managers and supervisors to whom Prindle brought her complaints were all identified by TNT's harassment prevention policy as persons to whom employees should report if they feel they are being harassed. In April 2001, Prindle reported to an operations manager that the co-worker had just touched her breasts. The operations manager did not respond to Prindle's concerns. The next day Prindle reported the incident to her former supervisor, who approached the operations manager and recommended that the co-worker be fired; however, the operations manager did not heed the supervisor's recommendation or take any other corrective or investigative actions. A few months later, Prindle reported to at least two managers other instances of harassment, including that the co-worker looked up her shorts and called her "honey" and "dear." When she reported these instances to the operations manager, he responded that the co-worker was a "ladies' man."

In August 2001, Prindle reported her concerns to a contract manager responsible for labor relations and human resources. That manager investigated Prindle's complaints and, at the conclusion of the investigation, transferred the co-worker and terminated the operations manager for failing to take action in response to Prindle's complaints. Despite these corrective actions, Judge Crabb ruled that TNT's four month delay in responding to Prindle's complaints raised a question of material fact as to whether TNT's response was sufficiently prompt to avoid liability.

The lesson to be learned from Prindle is that while an employer must provide sufficient outlets for persons who feel they have been harassed to report such conduct, it must simultaneously assure that all of the persons it has chosen to undertake this task are reliable, well trained and informed of their responsibility to deal with harassment complaints. Attorneys in Michael Best & Friedrich's Labor and Employment Practice Group have had extensive experience counseling employers regarding all of these issues. We would be happy to review your current training procedures and harassment policies in order to help you prevent harassing behavior in the workplace and to train your employees to take the appropriate steps when harassment is reported.

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