A case decided this week by the United States Court of Appeals for the Fifth Circuit reminds us of the importance of promulgating (and abiding by) effective anti-harassment policies. In Blanton v. Newton Associates, Inc., the appeals court upheld the jury's determination that the employer, a Pizza Hut store in San Antonio, Texas (a franchise owned by the corporate defendant), was not liable to the plaintiff Jamel Blanton because Pizza Hut had adopted, published, and adhered to a clear policy prohibiting workplace harassment. This finding by the jury, quite notably, was alone sufficient to relieve the store of liability. And this was so even though, in the court's words, Blanton suffered "egregious verbal sexual and racial harassment by the general manager of the Pizza Hut store where he worked." In other words, even though the GM undoubtedly harassed the plaintiff (conduct for which, notably, she was promptly fired), the franchise owner escaped liability for the rogue manager's unlawful conduct because of its anti-harassment policy. The defense that spared Pizza Hut from having to pay up for its GM's boorish actions is rather clumsily named the "Faragher/Ellerth defense" (or "Ellerth/Faragher defense," depending on the labeler's mood). The eponyms of this uninformative descriptor are two 1998 Supreme Court decisions -- Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. In short (and so as not to bore those already intimately familiar with this), an employer is liable for a supervisor's severe and pervasive sexual (or racial) harassment of a subordinate, but may escape responsibility if it can prove the affirmative defense concocted by the Court in those two companion cases. Invoking the defense requires proof (1) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities that the employer provided. This affirmative defense is available only when the harassing behavior did not culminate in a tangible employment action (firing, demotion, pay reduction, undesirable reassignment, etc.) but can otherwise afford a complete defense when proven.
Pizza Hut prevailed in Blanton's case -- notwithstanding that its own General Manager mistreated the plaintiff employee in unlawful ways -- because the company had a well-established policy prohibiting workplace harassment, and it had distributed that policy to all of its employees via an employee handbook. The policy provided that an aggrieved employee's recourse consists chiefly of reporting the harassing behavior to the harasser's supervisor, or someone else higher up the reporting chain. Although Blanton proffered evidence of complaints, he lodged them in the wrong place. He allegedly reported the GM's conduct to a shift manager and an assistant manager, but the store's policy clearly mandated reporting to a higher-up, not an underling. As to those initial complaints, then, he unreasonably failed to take advantage of the corrective opportunities that the employer provided. Moreover, as soon as he did (finally) take his concerns to the GM's boss(es), they took prompt remedial action and terminated her employment.
The moral of the story here is quite clear: employers must adopt and enforce effective anti-discrimination and anti-harassment policies. The policies must provide clear instruction for aggrieved employees including well-defined and reasonable reporting requirements. Beyond that, the employer must publish the policies and obtain written documentation reflecting not only their distribution but also that employees understand them. Even better, the employer should provide regular anti-harassment and anti-discrimination training to its entire workforce -- something that Pizza Hut may not have done here (the evidence was apparently conflicting). In this case, Pizza Hut's policy ultimately saved the day. Had it gone further and provided regular training so that everyone understood the rules and what to do when they are broken, perhaps the company could have avoided going to trial on this worker's claims, prevailing instead on summary judgment. Better yet, perhaps the company could have avoided the lawsuit altogether had the GM better understood just how wrong her actions were, and the workers been better versed in what to do when a problem arises.