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 us
es 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.