Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

With complaints of sexual harassment, there is a tendency of some employers to overreact.  The employer may decide to terminate an otherwise successful employee on the basis of one incident -- no matter the context.  Some employers, of course, might simply ignore the problem altogether.

But another group of employers uses a "Goldilocks" approach to the situation -- the "just right" approach. This approach is in the middle of the two extremes and takes into account context and proportionality.  It also follows an important approach to complaints of harassment -- responding promptly and appropriately.

I've sometimes been asked over the years whether this approach actually works.  The theory of some of these questioners is that courts will take a complaint of sexual harassment seriously and will not tolerate employers who do not fire the alleged harasser.

However, as I've often said, federal law doesn't say that firing alleged harassers is appropriate in all cases.  Rather, it talks about how employers must take "prompt, remedial action" -- a much different standard.

A recent District Corut case in Connecticut, Abdul-Hakim v. Smurfit-Stone Container Enterprises, Inc.   (Bryant, J.) reinforces that notion. In Abdul-Hakim, the employer took different steps to address complaints of harassment. First, the employer instructed the alleged harasser to stop communicating with the plaintiff. Then many months they moved shifts after another issue resurfaced. Critically, each complaint made by the Plaintiff was met with prompt and remedial action.

In Abdul-Hakim, the Plaintiff then resigned many months later and claimed that it was due to the hostile work environment. However, the Court granted the employer's request for summary judgment, finding that there was not a hostile work environment:

Examining the totality of the circumstances in this case, the Court concludes that the actions of Keller and the management were not sufficiently severe or pervasive to alter the terms of Abdul-Hakeem’s employment and create an objectively hostile work environment. Keller’s conduct over an eighteen month period consisted of the following: a handwritten note expressing romantic interest; eye contact; a telephone call regarding the omitted location of a business meeting; an e-mail message stating nothing more than “Thank you”; a request for permission to say “Hello” to Abdul-Hakeem, which she granted; and [the alleged harasser's' work-related discussion with two other employees conducted within Abdul-Hakeem’s earshot. As to the management, Abdul-Hakeem merely alleges that the management did not communicate with her following the final incident with Keller. None of that conduct qualifies as extreme or pervasive.

The Court was also troubled by the amount of time that passed between the last complaint and her resignation:

The five and one-half month period between the last incident with [the alleged harasser] Keller and Abdul-Hakeem’s resignation also demonstrates the lack of a causal connection. If Keller’s alleged harassment had been severe and pervasive, it is difficult to explain why Abdul-Hakeem would wait five and one-half months after the harassment ended in order to resign. None of the facts of the present case would have compelled a reasonable person to resign from her employment, and, therefore, summary judgment is warranted in favor of [the employer].

The case illustrates an important point of employment cases: treat complaints seriously and take appropriate action if necessary. But there is also no need to overreact.  It may just be best to take a "just right" approach to discipline. 

UPDATE: Jon Hyman, at Ohio Employer's Law Blog, references my post by noting that coincidentally, he made a similar point in an article published in the February 2008 based on an Eighth Circuit case.  Check it out.

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Summary Orders (in other words, decisions with no precedential value) by the Second Circuit typically are not worth noting. However, a decision released today is telling for the court's view of race and gender discrimination cases and it can be cited by parties under certain limitations.

In Williams v. Consolidated Edison of New York, the court reversed a lower court's decision granting summary judgment to the employer on race and gender harassment grounds.  While the court may have been skeptical of the claims, it found that the amount of evidence presented by the Plaintiff -- if believed -- could support a claim of racial and gender harassment.

In approximately three years at the company: (1) one supervisor..., referred to Williams as a “black b****” on more than one occasion and ... another supervisor,
referred to her as a “b****”; (2) [one supervisor] directed gender-based verbal abuse at Williams...; (3) [one supervisor insinuated that Williams and [another employee] were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “b***” and “c***”; (5) women encountered pornographic materials in the workplace on at least several  occasions; (6) Williams and [another employee] experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers... states that she, too, was sexually harassed, including that she was called a “b**” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal
abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

Obviously, as readers of this blog know, these allegations are merely that -- allegations.  But the language used here and the different types of harassment alleged, was obviously more than enough for the Second Circuit to reverse.

The Court also addressed the employer's response to co-worker harassment:

Whether Con Ed’s response to Williams’s complaints about a sexually and racially hostile work environment — and the information it obtained in the process of investigating her complaints — constituted “appropriate remedial action” is subject to reasonable dispute on the record before us. During the first human resources investigation into Williams’s complaints in 2002, several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments. Given the information that Con Ed received during its investigation and the absence of anything in the record indicating whether Con Ed followed up on this information, a reasonable juror could find that Con Ed failed to take prompt and appropriate remedial action in response to substantiated allegations of sexual and racial hostility in the workplace.

It's easy to look back on this case and point out that the employer should've done more.  And indeed, an investigation that may look thorough at the time, can appear to be incomplete given a the context later on.  However, the case is a further illustration about the importance of conducting a thorough investigation when complaints of harassment are made and detailing that investigation in a written report.  Whether that still would've been enough here is questionable but it might have helped. 

Moreover, when a second complaint was made by Williams and investigated until Williams said she was too "stressed" to continue, the court found that this second investigation was also subject to dispute and the employer may not have done enough.

When Williams complained a second time to human resources about being subject to a sexually hostile work environment, the human resources officer closed his investigation after speaking only to Williams’s supervisor. That action was based in part on Williams’s decision not to follow up with him because she was “too stressed.” A reasonable fact-finder could conclude this second investigation was a perfunctory and inappropriate response to Williams’s hostile work environment allegations, which Con Ed arguably should have investigated regardless of whether Williams had the time or the energy to pursue it further.

This illustrates the importance of continuing a sexual harassment investigation to its conclusion -- regardless of whether a complainant later refuses to cooperate or asks that the investigation be conducted in private. The court's decision suggests that employers have an independent and affirmative obligation to investigate claims of harassment, regardless of the complainant's wishes, once it is made aware of them

What is also notable about the case is that the court affirmed summary judgment to the employer on the retaliation claims finding them either time-barred or without merit.  In essence, the court found that the reasons given by the employer for the discipline of the employee were legitimate. 

Williams admitted that she made statements referring to the possibility of driving a truck into the trailers of the Brooklyn flush facility and to going “postal” at work — comments that invoke images of violence against her superiors and that could be understood as veiled threats. Furthermore, three coworkers reported that those comments were even more explicitly threatening than Williams admitted. Based on its zero tolerance policy of violence or threats of violence in the workplace, [the employer] took disciplinary action.

It's unfortunate that this case cannot be cited for precedent because it speaks to some issues that could use further clarification by the Second Circuit. But employers and in-house counsel can still take the lessons of the case to heart.

(H/T - Wait A Second!)

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