A new Fifth Circuit case reveals the consequence that can occur when an employer and its managers fail to take harassment complaints seriously; fail to promptly and thoroughly investigate the complaints; and reach conclusions following the investigation that just plain wrong. In Cherry v. Shaw Coastal Inc., a male employee (Cherry) complained that his immediate male supervisor was making making inappropriate comments of a sexual nature and causing unwanted physical contact. Because I don’t want this blog to show up in Google’s search results for unsavory topics, I’ll let you read the opinion itself the graphic details of the egregious, same-sex sexual harassment that was experienced by Cherry. Needless to say, it included unwelcome comments of a sexual nature and unwanted touching that the jury concluded amounted to sexual harassment by the male co-worker.
The conduct of was so severe that one of Cherry’s co-workers initially complained about what he witnessed. Cherry also made repeated complaints to the managers in his supervisory chain. The supervisors receiving the complaints failed forward them to human resources as required by company policy and instead questioned whether the conduct complained of was merely horsing around. Cherry ultimately went directly to human resources and made a complaint. Despite the fact that Cherry made an estimated ten complaints, had an eyewitness to the harassment, and text messages demonstrating the unwelcome sexual comments, the company’s human resources staff concluded there was "insufficient evidence" to corroborate the complaint. Cherry and the alleged harasser were placed on different work crews, but Cherry complained that he continued to get "dirty looks" from the alleged harasser. Finally, six months after the first complaints of harassment occurred, Cherry resigned his employment specifically pointing the on-going harassment and retaliation to which he claimed he he was subjected.
A jury found in favor of the Cherry on the sexual harassment claim but the trial court entered judgment in favor of the company. On appeal, the court of appeals reversed the trial court. The Court found that the Company had done enough to avoid a punitive damages finding (i.e., that the company did not act with malice or reckless disregard) because it had a policy against sexual harassment with a complaint procedure and, while not acting promptly, ultimately transferred the harasser to a different crew.
As to liability for the sexual harassment, the Court found that there was sufficient evidence to support the jury’s verdict and that the company did not act promptly. The Court concluded that the human resources department’s decision not to act because of "insufficient evidence" could be reasonably interpreted as a failure to take prompt remedial action. Consequently, the appeals court reversed the judgment in favor of the employer and directed the trial court to enter judgment in favor of the plaintiff-employee on the sexual harassment claim.
You can take a few things away from the Cherry opinion:
- Ensure supervisors are trained on their responsibilities under the company’s sexual harassment policy and make sure they forward complaints they receive to human resources for investigation;
- Don’t conclude there is insufficient evidence of company violations where the complaining employee has eyewitness corroboration and text messages to support his claim;
- Investigate all complaints of alleged harassment promptly.
A full copy of the Court’s opinion is available here.
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