The Dysfunctional Employer Sexual Harassment Policy: Policy Not Enforced Or Effective
Having represented sexual harassment victims for more than twenty years, our sexual harassment lawyers in Marion County, Florida know that a common employment law myth is employers who maintain a policy prohibiting sexual harassment cannot be held liable for sexual harassment. An employment law myth perpetuated by employers who routinely argue they are immune from liability for sexual harassment because they maintained a policy prohibiting sexual harassment. The mere existence of a sexual harassment policy, however, does not shield employers from liability from sexual harassment. Rather, employers must establish that their policy prohibiting sexual harassment was reasonably designed and reasonably effectual. In other words, as the court in EEOC v. Management Hospitality of Racine, Inc.,666 F.3d 422 (7th Cir. 2012) observed, the employer’s sexual harassment policy must not only be reasonably effective on paper, but also reasonably effective in practice.”
To be reasonably effectual in practice, employers must show that their policy prohibiting sexual harassment is effective in preventing sexual harassment and is vigorously enforced. To show that its anti-harassment is effective and vigorously enforced, an employer establish that when it knew or should have known of sexual harassment in the workplace, it took prompt and effective remedial action to prevent the sexual harassment from reoccurring. When an employer takes no corrective action, or when the corrective action taken does not stop the sexual harassment or deter the harasser from harassing others, the employer is liable for creating and maintaining a sexually hostile work environment.
In this article, our sexual harassment lawyers in Marion County, Florida explain how the alleged facts in Harris v. Detroit Entertainment,LLC, Case No. 20-cv-13403 (E.D. Mich. Sept. 29, 2022) show that a prior complaint from a different victim against the same sexual harasser establish that the employer’s anti-harassment policy was neither effective nor vigorously enforced.
Sexual Harassment Lawsuit
In that case, a woman named Harris brought a sexual harassment case against former employer, Detroit Entertainment, LLC, d/b/a MotorCity Casino Hotel (“MotorCity”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employers from discriminating against employees on the basis of sex. Under long standing law, sexual harassment is a form of sex discrimination forbidden by Title VII. Harris claims that she was sexually harassed by a supervisor in violation of Title VII.
Harris began working for MotorCity in 1999 Harris works as a VIP server at the MotorCity Casino. Harris alleges that at some point before April 2019, her supervisor, Neel, began making what she describes as unwanted sexual advances. According to Harris, Neel would tell her every day that he loved her and that he wanted her to be his wife. Harris further alleges that Neel invited her to his house and sexually propositioned her. Harris also claims that Neel twice intentionally brushed his hand along her buttocks. Harris does not remember when Neel’s inappropriate behavior began, and she never reported it to human resources or Neel’s supervisors. However, Harris stated that she eventually reported the issue to another supervisor, Brinkman, who allegedly replied, “Well, you know he loves you.”
According to Harris, the last straw for her came on February 4, 2020. That afternoon, Harris entered the office Neel shared with other supervisors. Harris testified that she sat in a chair in the office when Neel reached out, grabbed her left breast, and squeezed. According to Harris, she responded by pushing Neel’s hand away, jumping out of the chair, and exclaiming, “What are you doing?”
Employer’s Non-Harassment Policy
MotorCity maintains a non-harassment policy. The policy proclaims the company’s intolerance of “unlawful discrimination and harassment’ of is employees and promises “a workplace free from all forms of unlawful discrimination and harassment.” Employees who believe that they are the victim of discrimination or harassment are instructed to report it “immediately” to their “supervisor/manager or department head.” If the complaint cannot be discussed with a supervisor, then the employee “must contact the Vice President of Human Resources.”
On February 10, 2020, Harris reported the alleged sexual assault to Neel’s supervisors. Neel’s supervisors referred the matter to the Director of Human Resources for investigation. During the investigation, Neel denied deliberately touching Harris’ breast but allowed that he may have done so unintentionally while reaching to grab his coat. At the conclusion of the investigation, the Director of Human Resources concluded that Neel’s explanation was credible. Nevertheless, MotorCity suspended Neel for two weeks and informed Neel that if he violated any company rule during the next year, his employment was subject to immediate termination.
Neel was placed on a different shift so that he did not overlap with Harris. In March 2020, the MotorCity Casino closed to the COVID-19 pandemic and Neel was furloughed. Neel never returned to the MotorCity Casino.
Harris testified that she did not come forward before the February 4, 2020 alleged sexual assault because she heard that Neel previously had harassed a different server, Wilbourn. Harris understood that Wilbourn had reported the harassment to a supervisor, Morgan, who allegedly took no action in response. Harris therefore believed that all complaints about Neel would fall on deaf ears. Harris also believes that MotorCity’s investigation into her allegations was inadequate because the Director of Human Resources did not interview Wilbourne or a supervisor, Cureton, whom Harris says saw Neel say inappropriate things to other servers.
Failure To Enforce Policy
MotorCity filed a motion with the trial court seeking dismissal of Harris’ sexual harassment claim. MotorCity contended that it was not liable for any sexually harassing behavior Harris experienced because it maintained a policy prohibiting sexual harassment. Harris argued MotorCity’s policy was not effective in practice because MotorCity failed to enforce its policy by refusing to take action in 2019 after Neel allegedly harassed Wilbourn. The trial court agreed with Harris and denied MotorCity’s motion for dismissal.
In denying MotorCity’s motion for dismissal, the trial court observed that Wilbourn testified that she complained to supervisors sometime in 2019 that Neel was harassing her. The trial court also pointed out that Harris testified that two other supervisors—Brinkman and Cureton—knew that Neel was harassing her prior to February 2020. Harris testified “that Cureton witnessed harassment and that she discussed Noel’s conduct with Brinkman, who excused Neel’s behavior and took no further action.” Based on this evidence, the trial court found that “a reasonable jury could find that MotorCity received prior complaints about Neel, was unresponsive to those complaints, and that its unresponsiveness constituted a failure to enforce its anti-harassment policy or to exercise care reasonably calculated to correct harassment.”
Marion County Sexual Harassment Lawyers
Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment lawyers in Marion County, Florida have fought for the rights of sexual harassment victims for more than twenty years. If you have worked in a sexually hostile environment or have questions about your protection from sexual harassment under federal employment discrimination law, please contact our office for a free consultation with our sexual harassment lawyers in Marion County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.