Two cases emphasize the importance of harassment policies

By G. Phillip Shuler

The preceding quote from Shakespeare's Much Ado About Nothing really has nothing to do with the topic of this month's article. The "office" Claudio referred to in this passage is not a place of work, but rather an assumed role or duty.

And when he wrote this some 400 years ago, Shakespeare was not cautioning his audience about the perils of workplace romance. Nevertheless, I thought it might be an interesting jumping off point for some 21st Century cautionary tales in the office and the law.

Our first story is called Noto v. Regions Bank, and takes place largely in a south Louisiana bank. The plaintiff, Sandra, was a former loan assistant at Regions Bank who alleged that her female supervisor, Paula, subjected her to improper amorous advances.

As these things go, eventually Sandra was fired from her job. And when she was, she made clear that hell hath no fury like a junior loan assistant scorned. She sued Regions, arguing that Paula had sexually harassed her and that the bank was responsible under state and federal law for same sex harassment.

For her part, Paula denied any improprieties with Sandra and other co-workers were quick to point out that Paula was simply an affectionate person. For instance, a number of other employees said that Paula hugged them, kissed them on the cheek from time to time and told both men and women "I love you" and "You're the greatest."

The bank argued that Paula's conduct did not amount to sexual harassment and that Sandra could not demonstrate that she was sexually harassed under the prevailing law. If you will pardon the pun, the bank took the position that Sandra's complaints were much ado about nothing.

The court agreed and dismissed the lawsuit in its entirety.

In doing so, there was considerable discussion about burdens of proof, about whether Sandra presented sufficient evidence of alleged harassment and about whether the bank could be liable for Paula's alleged conduct.

Ultimately, of course, these questions were answered in favor of the bank and the story ended.

All good stories should be instructive and this one will provide the reader with a couple of good lessons. First, same-sex harassment claims are actionable under state and federal law. Not only are they actionable but they are becoming increasingly common.

As you and your employees go about your day, you may all want to be careful about what you say to others, including members of the same sex, and how you say it.

A second lesson that might be learned from the tale is this: it's probably not a good idea to hug and kiss folks in the workplace. While we live in a place where people are typically friendly and demonstrative, we also live in a litigious time where such conduct might be misconstrued for any number of reasons.

If you feel the urge to tell your employee or co-worker "I love you," you may want to ask yourself whether Paula is still doing this in the workplace. I bet she isn't, nor should you.

The second tale in our cautionary survey is called Hampton vs. Gannett Co. Inc. In this story, Valerie was hired by Gannett as a "part time material handler" and later ascended to the position of a dispatch clerk in January 1999.

In her new position, she answered to Dale; and according to Valerie, answer she did.

Within weeks of attending Gannett's orientation meeting, during which the company outlined its sexual harassment policies and procedures, Valerie claims that Dale repeatedly sexually harassed her under threat of termination.

The plaintiff filed a charge with the EEOC. She later took a medical leave and when she failed to return from leave she was terminated. As you can imagine, a lawsuit followed.

But as in all good stories, before we get to the denouement the plot must thicken, and it does so here. It seems that Valerie's was not the first complaint against Dale. Two other women had previously filed complaints against Dale also alleging sexual harassment.

While Gannett reprimanded Dale for his alleged improprieties, both verbally and in writing, Valerie said it was not enough to dissuade him from coercing her. In case you were wondering, after receiving its third complaint alleging sexual harassment by three different women in about 14 months, Dale was fired.

Perhaps not soon enough, though, to save Gannett.

Valerie alleged in her lawsuit that Gannett was liable under state and federal law for creating a hostile work environment. The court found that given the history of alleged improper conduct with subordinates by Dale, there was a real question of whether Gannet exercised reasonable care to prevent or correct the alleged harassment.

Thus, the court found, a jury would have to consider all of the claims and determine whether Gannett acted reasonably under the circumstances.

The moral to this story is pretty clear: if an employee alleges that she or he has been sexually harassed, you should investigate promptly and thoroughly and take appropriate remedial action where warranted.

"Appropriate action," of course, depends upon the facts. Here the court concluded that Gannett might have done more than reprimand Dale to make its workplace safer. Valerie will now be permitted to present her claims to a jury to see if they feel Gannett acted reasonably under the circumstances.

These two cases demonstrate that sexual harassment claims in the workplace can take drastically different forms. One presented itself as harassment based upon rather innocuous conduct; the other, a more traditional harassment claim with much more ominous facts.

Employers would do well not only to re-visit their policies and procedures prohibiting harassment in the workplace, but also to take a good look at whether and how these policies and procedures are being enforced.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.