A recent Eighth Circuit court ruling demonstrates the importance for employers to maintain a valid anti-harassment policy and promptly investigate and respond to allegations of harassment. In Crawford v. BNSF Ry. Co., 2012 U.S. App. LEXIS 595 (8th Cir. 2012), employees of BNSF Railway Company (“BNSF”) did not notify the company of their supervisor’s allegedly harassing conduct until months after the conduct began and after they filed a discrimination charge with the Nebraska Equal Opportunity Commission. In a lawsuit the employees brought against BNSF, the Eighth Circuit ruled that given the company’s comprehensive anti-harassment policy and its prompt and effective response when notified about the supervisor’s conduct, BNSF satisfied the requirements for an affirmative defense and was not vicariously liable for the supervisor’s actions.
More specifically, the complaining employees did not report any alleged harassment until after filing discrimination charges. Upon receipt of the employees’ harassment complaint, however, BNSF immediately began an investigation of the allegations. Within two days, BNSF placed the supervisor on administrative leave. At the conclusion of its investigation, less than two weeks later, BNSF notified the supervisor that his employment would be terminated. The supervisor chose to resign.
Subsequently, the employees filed lawsuits in federal court alleging that BNSF had subjected them to sexual and racial harassment. Notably, an employer is vicariously liable for a supervisor’s actionable sexual or racial harassment of employees unless the employer can establish the “Ellerth-Faragher” affirmative defense. After the district court concluded that the company was entitled to this defense, and thus, not liable to the employees, the employees appealed to decision the Eighth Circuit.
Before the Eighth Circuit, BNSF did not directly dispute the employee’s allegations about the supervisors’ conduct, but maintained that it was entitled to the Ellerth-Faragher affirmative defense. Citing the standard for the defense, the Eighth Circuit explained that an employer must show that “(a) it exercised ‘reasonable care to prevent and correct promptly any sexually harassing behavior’; and (b) the employee ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’”
First, the Court determined that BNSF satisfied the first element of the Ellerth-Faragher affirmative defense and exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Central to this analysis was BNSF’s comprehensive anti-harassment policy, which provided procedures for reporting suspected harassment. The Eighth Circuit rejected the employees’ argument that the policy was not actually enforced. The record revealed that BNSF had investigated and took action in response to each of the incidents that the employees attempted to use as examples to support their contention. Moreover, particularly significant to the Court was BNSF’s “extremely swift action” in investigating and terminating the employment of the supervisor once the employee finally reported his behavior.
Second, the Eighth Circuit determined that the employees unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Given that BNSF took prompt and effective action as soon as an employee reported the alleged harassment, the Court determined that the facts created a strong inference that the employees were unreasonable for not invoking BNSF’s complaint procedures sooner. Although the employees claimed they feared retaliation, the Court found there was no evidence to show that their fear of retaliation was either “genuine or reasonable.” The record lacked evidence of prior retaliation for reporting harassment; BNSF’s anti-harassment policy contained an anti-retaliation provision; and appellants could have used the anonymous hotline. Additionally, the record indicated that part of the reason for the employees’ delay in reporting was to gather more evidence against the supervisor, which did not make the delay reasonable.
Consequently, the Eighth Circuit determined that BNSF established both parts of the Ellerth-Faragher affirmative defense and affirmed the judgment of the district court. The decision reiterates the importance for employers to maintain and enforce an anti-harassment policy and promptly and effectively respond to allegations of harassment.
Kelli P. Lieurance is a member of the Baird Holm’s Labor, Employment and Employee Benefits Law Group. She will present a session on Sexual Harassment Prevention at the 2012 IBA HR Conference April 17-18 in Ankeny.