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.

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Photo of Nicole Eichberger Nicole Eichberger

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents…

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents clients in all types of employment-related matters, from single-plaintiff and complex employment to large, complex class and collective actions alleging discrimination, non-compete violations, and wage and hour disputes.

Nici has significant experience assisting clients in the defense of numerous class and collective actions. She frequently counsels employers, fiduciaries, and trustees on employment, wage and hour and benefit issues.

In addition to her litigation practice, Nici assists in conducting workplace investigations and audits related to discrimination, managerial training, non-competes and employee classification. She is adept to counseling clients on a wide array of issues including reviewing and drafting employee handbooks, wage and hour issues, employee leave and training policies.

She is a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations and litigation strategies.

Nici recently completed a three-year term was on the ABA’s Standing Committee on Pro Bono & Public Service and serves as the Pro Bono Co-Coordinator for Proskauer’s New Orleans office. She is a prolific writer, frequently contributing to Proskauer’s Law and the Workplace Blog and a sought-after speaker on collective/class action topics.