Careful, Consistent Steps Protect Employer From Harassment and Discrimination

4/11/2012

Employers can lay the groundwork for an effective defense against certain employee discrimination claims by taking smart and consistent steps before such claims are even made.  Affirmative defenses are some of the best safeguards against liability based on one employee’s illegal discrimination against the other employees he or she supervises.  At the same time, it’s worth emphasizing that the underlying elements of affirmative defenses —  like anti-discrimination policies, employee education, hotlines or other easy methods to report improper discrimination, and prompt investigations — must be used consistently and carefully in order to shield an employer from vicarious responsibility for the improper acts of supervisors. A January 2012 decision by the United States Court of Appeals for the Eighth Circuit, Crawford v. BNSF Ry Co., 665 F.3d 978 (8th Cir. 2012) illustrates how these elements work hand-in-hand.  

Employees of BNSF Railway Company sued their employer on the ground that their supervisor had subjected them to harassment for racial and gender-based reasons.  Instead of waiting to defend itself at trial, BNSF raised an affirmative defense, asking the trial court do dismiss the case based on pretrial motions and evidence.  The affirmative defense is known as the Ellerth-Faragher defense, and is taken from the names of the United States Supreme Court cases in which the defense was established.  There are two parts to the affirmative defense: an employer can protect itself from liability for a supervisor’s harassing conduct if it can show (1) it exercised “reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) the complaining employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” 

BNSF not only had an anti-harrassment policy and a discrimination reporting hotline, but was able to document that it promptly investigated and took action when complaints were made about violations of the policy.  Even though the plaintiffs claimed BNSF’s actions against accused harassers in the past were not harsh enough, the district court deferred to BNSF’s business judgment because its investigations of reported behavior were prompt and certain.   

In order to obtain pretrial dismissal of the claims BNSF also had to establish the second part of the affirmative defense — that the plaintiffs failed to take advantage of the preventive or corrective measures in place.  The evidence showed that the complaining BNSF employees did not report the alleged harassment to their employer for about eight months after it began.  As soon as the supervisor’s conduct was reported, BNSF initiated an investigation, placed the supervisor on leave and eventually terminated him. Significantly, the court did not accept the plaintiffs’ excuse that they waited to report the harassment so that they could obtain more evidence against the harasser.  Such a strategy is not a reasonable reason for delay.
  
In summary, BNSF was able to avoid a trial because of several steps it took before it even learned a supervisor would be accused of harassment.  BNSF had an anti-harassment policy.  It had a hotline that made reporting harassment easy.  It kept documentation of investigations spurred by the hotline, and those records showed prompt corrective action when complaints were made.  BNSF was able to show there was no reason its employees should fear retaliation for reporting harassment, and no reason to doubt complaints would be taken seriously.  It took prompt action against the alleged harassing supervisor, once it completed a thorough investigation. 

The BNSF case is just a reminder of the value of anti-discrimination policies and procedures.  Always consult counsel to understand what practices best fit your business and provide the best opportunity for an affirmative defense against claims of illegal discrimination.