Note to Employers: Investigate Harassment Claims

 When an employer has a procedure for investigating harassment complaints and fails to do so, it will held against the employer in subsequent litigation. The 6th Circuit's decision in Waldo v. Consumers Energy Company serves as a reminder to employers [an enhanced version of this opinion is available to lexis.com subscribers].

The plaintiff was the only female who worked on a electrical line crew. She found herself subjected to a variety of incidents which she claimed were sexual harassment. At trial, the court of appeals noted that her claims were either confirmed by witnesses or were not directly controverted. The incidents included sexually explicit literature in the work vehicles; being called derogatory and demeaning names; being denied use of trucks to drive to a bathroom; throwing her purse out of a truck since "no purses were allowed" in the trucks; locking her in a porta-potty; and excluding her from lunch trips.

The company argued that the incidents did not appear to be sexual in nature when viewed as isolated incidents. The court of appeals stated that facially neutral incidents may be included in the totality of the circumstances where there is a reasonable basis for inferring that the incidents were in fact discriminatory. The court of appeals found that based on the totality of the evidence presented to the jury, the district court did not abuse its discretion by finding that the clear weight of the evidence demonstrated the plaintiff's work environment was filled with discriminatory intimidation, ridicule, and insult sufficient to alter the conditions of employment in violation of Title VII.

The court of appeals found that the district court did not abuse its discretion in finding that the employer could be held liable. The HR representatives testified that they were aware of complaints and had spoken with the plaintiff on numerous occasions. Plaintiff had filed a grievance over her treatment and had met with company representatives to explain her concerns. There was no formal investigation undertaken, and no other employees were interviewed to determine if the complaints were valid. The court noted that the lack of response was contrary to company policy which stated that complaints would be fully investigated. Upper management was never advised of the complaints. The company's failure to respond tolerated or at least failed to take the appropriate remedial action.

Where, as in this case, an employer knows the only female employee working with males is alleging harassment, it is imperative that complaints be investigated. Employers who implement procedures and urge employers to use them must conduct an investigation when confronted with a complaint. Failure to do so is really not an option.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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