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Published: 2008-03-26

Complaints To Wrong Managers



A recent decision from the United States Court of Appeals for the Eleventh Circuit demonstrates the importance of having a well-drafted and enforced anti-harassment policy.

The employees in the case claimed that the store manager at a Publix Supermarket created a hostile work environment through inappropriate touching and comments. Publix had promulgated an anti-harassment policy, which specifically listed the names and telephone numbers of the appropriate upper-level management individuals to whom employees should voice harassment complaints. Despite knowledge of this policy, the employees "complained" informally to three different mid-level managers over a six month period. Two of the mangers took no action. The third mid-level manager, at the employees' request, put the employees in touch with the appropriate upper-level management individual identified in the anti-harassment policy. Upper-level management conducted an investigation, resulting in the demotion and transfer of the harassing store manager. The employees subsequently brought a sexual harassment claim against Publix, claiming it took Publix too long to respond to their complaints, meanwhile subjecting them to a hostile work environment.

The court noted that an employer has an affirmative defense to sexual harassment claims, which requires proof of two things: First, that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and second, that the employee unreasonably failed to take advantage of any corrective opportunity provided by the employer to avoid harm.

Employee Must Follow Complaint Procedure

The court found Publix's anti-harassment policy was sufficient to demonstrate "reasonable care" by Publix. The policy listed specific supervisory individuals to whom employees could easily have access and allowed employees to avoid complaining directly to the harassing supervisor or within the supervisor's chain of command. Additionally, the court held Publix had responded to the complaints in a timely fashion. The court did not consider the employees' comments to the first two mid-level managers as putting the company on notice of the harassment, specifically stating that, "once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances."

As to the second prong, the court found the employees knew the appropriate procedures, yet despite that knowledge, chose to complain informally to individuals not identified in the anti-harassment policy.

Open Door Policy Does not Save Claim

The court further found that the existence of a second policy enforced by Publix, an "Open Door Policy" inviting employees to make complaints to any managing employee, did not assist the employees in their claim, because the Open Door Policy specifically required employees to go to the next highest level of management "or to the top" to get a complaint resolved, which they did not do. Accordingly, the court held that the employees themselves had unreasonably delayed utilizing the company's sexual harassment complaint procedures, and denied the plaintiffs' claim.

The Eleventh Circuit's decision is favorable to employers and hopefully will be adopted by the Tenth Circuit Court of Appeals, which has jurisdiction over Utah. Nonetheless, employers should consider training all managers who receive harassment complaints to pass them along to the employee(s) designated to receive complaints under the employer's harassment policy. This will reduce the risk presented to employers whose managers, albiet even the wrong ones under the harassment policy, know of complaints but take no action.