Employers dealing with sexual harassment complaints have recently been provided with guidance by the Eleventh Circuit Court of Appeals regarding the scope of an employer's legal obligation to conduct investigations and their discretion to reach conclusions and create remedies that comply with applicable anti-harassment laws. The Eleventh Circuit's opinion, in a case called Baldwin vs. Blue Cross/Blue Shield of Alabama, also clearly imposes an obligation on employees to promptly report harassment incidents and to fully cooperate with their employer's proposed remedial measures.

In the Baldwin case, a female employee filed a complaint about her supervisor's and co-workers’ widespread use of profanity in the office place, and her supervisor's alleged sexual innuendos and approaches, which had allegedly been directed toward the employee. Although the Eleventh Circuit assumed that the facts being asserted by the complaining employee were true for the purposes of its ruling in the case, the court still found that the employer was not liable to the employee.

The Eleventh Circuit found that although profanity was commonplace in the pertinent office, the court stated that the profanity did not establish that a hostile work environment existed for the complaining female employee because the profanity was not directed toward any distinct group of employees, but created the same environment for all of the employees, men and women alike. The court also noted that the complaining employee admitted that she had used profanity. As the profanity was not directed toward any particular employee, including the plaintiff, due to their gender, the court found that the existence of profanity, by itself, did not create a hostile work environment for women generally or the plaintiff specifically.

The court also stated that the employer had taken appropriate actions to be entitled to an affirmative defense that has been established by the U.S. Supreme Court in connection with hostile work environment claims. In this case, Blue Cross had a valid written anti-discrimination and anti-harassment policy that prohibited sexual harassment, which was found to have effectively been communicated to all of the employees, including the plaintiff. The court noted the policy contained a reasonable procedure to report complaints; the complaining employee admitted she was aware of this procedure. The court held that when the employee had complained to the employer's human resources department, Blue Cross undertook reasonable steps to investigate the employee's complaint. In this case, Blue Cross sent the head of human resources and two other department members to investigate the complaint. During the investigation, the complaining employee, her supervisor, and other witnesses were interviewed by the investigators. The complaining employee had numerous complaints about the manner in which the investigation was conducted, but the Eleventh Circuit refused to get involved in "micro-managing internal investigations," and, instead, held that a court should only look to the overall reasonableness of the investigation under the circumstances of each case, and ruled that the investigation in this case was adequate.

The Eleventh Circuit went on to state that even if a given investigation is deficient, the employer is still not liable for a hostile work environment if the remedial action taken by the employer in response to the complaint is adequate. In this case, Blue Cross was unable to determine if the complaining employee or the supervisor was being truthful about the alleged instances of sexual advances having being made. Nonetheless, Blue Cross proposed and offered to have the employee and her supervisor meet with an expert industrial psychologist to assist them in resolving their differences and establishing a more productive business relationship. The Eleventh Circuit pointed out that the counseling remedy was appropriate as a first step, particularly as the proposed expert had previously successfully handled similar problems between employees and supervisors for the employer. The court noted that if the initial remedy works, additional actions would not be necessary. The employer also offered to transfer the complaining employee to another office, which the court also felt was a reasonable proposal. The complaining employee rejected both of these employer-offered remedies.

The court concluded that Blue Cross's proposed remedial steps were sufficient for the company to avoid liability. The court stated that warnings, counseling, and monitoring directed toward the harasser is legally sufficient as an initial remedy even when a harassment complaint has been substantiated, much less, as in this case, when an employer is uncertain if the alleged harassment even took place. Accordingly, the court held that the employer had proposed reasonable remedial steps in response to the employee's complaints. The court also took issue with the complaining employee's refusal to cooperate with and to take advantage of the employer's proposed remedial actions. The court firmly said that the employer, and not the complainant, gets to choose the remedy to alleged harassment situations.

Furthermore, the court was concerned that the complaining employee did not comply with the employer's anti-harassment policy, which required employees to promptly report any harassment or discrimination complaints. In this case, many of the problems that the employee was raising issues about had happened months in the past. The court stated that one of an employee's primary duties in connection with harassment issues is to comply with the employer's reporting rules and procedures to take full advantage of the employer's preventive measures so harassment can be identified and stopped before it can build to a point where it may be severe or pervasive. The court held that the plaintiff had waited too long to complain. The court rejected the employee's excuses for waiting, including her asserted fear of being fired and her belief that "going along to get along" would better serve her career goals. The Eleventh Circuit found that workplace harassment and discrimination cannot be stopped without the cooperation and involvement of the alleged victims, and that timely complaints must be made even if the employee is uncomfortable, scared, or both.

Accordingly, to minimize liability exposure for harassment and discrimination claims, the Eleventh Circuit has stated that employers can establish an effective affirmative defense by adopting appropriate anti-harassment policies and procedures, effectively informing the employees about the policies, requiring employees to promptly report any events that violate the policies, reasonably investigating the complaint by interviewing the parties to the matter and pertinent witnesses, and by taking reasonable remedial steps to address the situation, which, at least initially, can be limited to counseling the alleged harasser and monitoring the situation to confirm that the asserted problem has been adequately addressed and resolved. In addition, employees can now clearly be required to promptly report any harassment or discrimination complaints and to cooperate with the employer's proposed remedial actions. To the extent that employees refuse to cooperate, their employment can be terminated, and the employer will have a viable legal defense to a harassment or retaliation claim.

For more information, contact Larry Corman or Glenn M. Rissman.

This article first appeared in the Boca Raton/Delray Beach News.