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Fifth Circuit Decision Reinforces The Importance of Clearly Communicating Anti-Harassment Policies

A well-drafted anti-sexual harassment policy and complaint procedure can provide useful defenses for employers defending against claims of sexual harassment. However, a recent decision from the Fifth Circuit should remind employers that simply drafting that policy is only half the battle – they must also ensure that employees actually know that the policy exists. 

Kandice Pullen (“Pullen”) worked at the Caddo Parish School Board, first in the purchasing department and later in human resources. Pullen’s supervisor in the purchasing department was Timothy Graham (“Graham”), who allegedly verbally harassed her, touched her in an unwelcome manner, and showed her “inappropriate pictures” of other women. Even after Pullen transferred to HR, Graham continued to visit her and made additional inappropriate comments. Pullen never reported Graham’s behavior to any other School Board employee. However, a co-worker later made a similar complaint about Graham and identified Pullen as another potential victim. After an investigation, the School Board found that this complaint was well-founded and disciplined Graham. During the investigation, Pullen separately contacted the EEOC and eventually filed a lawsuit claiming that Graham’s actions constituted a hostile working environment. 

The School Board filed a motion for summary judgment invoking the Ellerth/Faragher defense, a long-established Supreme Court doctrine which provides that an employer is not liable for a supervisor’s alleged harassment if (as relevant here) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, such as an established internal complaint procedure. The district court granted the motion but the Fifth Circuit reversed. Pullen admitted that the School Board had an internal anti-harassment and complaint policy that was, in theory, sufficient to meet the defendant’s burden. However, she claimed that it was “not sufficiently publicized to allow for summary judgment.” The Fifth Circuit agreed. Even though it was undisputed that a copy of the policy was publicly pinned on a bulletin board in the School Board office, several employees (including plaintiff) testified that had never received a copy of the policy and were unaware that it existed. Other employees said they were aware of the policy. The court held that the contradictory testimony created a conflict of fact that could not be resolved on summary judgment, and the School Board therefore failed to establish its Ellerth/Faragher defense as a matter of law.

The practical takeaway from this decision is straightforward — it is not enough for an employer to draft an anti-harassment policy, pin it on an out-of-the-way billboard, and forget about it. Instead, employers should ensure that a copy of the policy is disseminated to all employees, either electronically or in printed form (preferably accompanied by a signed acknowledgment of receipt). Employers would also be wise to train supervisors and other employees on the importance of immediately reporting any instances of alleged harassment or discrimination. And, if a complaint arises, the employer should immediately conduct an appropriate investigation. If you have any questions regarding the drafting or publication of anti-harassment or anti-discrimination policies, or need assistance in conducting a workplace investigation please contact your Proskauer attorney or the authors of this blog. Proskauer also offers targeted training programs for both supervisors and employees on all aspects of employment law.  

© 2020 Proskauer Rose LLP. National Law Review, Volume VI, Number 208


About this Author

Nicole A. Eichberger, Labor and Employment Attorney, Proskauer Law Firm
Senior Counsel

Nicole A. Eichberger is a Senior Counsel in the Labor and Employment Department, and a member of the Class/Collective Action Group and the Employee Benefits, Executive Compensation & ERISA Litigation Practice Center, resident in the New Orleans office. Nici assists clients in the defense of numerous complex employment and ERISA class and collective actions, including those alleging FLSA, ERISA and Executive Compensation Claims. Nici is also a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations, and...