Wednesday, May 9, 2012

Employer's failure to investigate HWE may violate Title VII

On Monday, I wrote about a same-sex harassment case where the Court of Appeals held that a female supervisor may have created a hostile work environment in touching a female subordinate's breasts three times over a six-month period. Today I write about the second part of the decision, holding that a jury may find that management failed to properly investigate the plaintiff's complaint in violation of Title VII.

The case is Redd v. New York State Division of Parole, decided on May 4. Any human resources professional knows that you have to to promptly investigate any sexual harassment complaint. You're staring liability in the face if you don't. The Supreme Court made this clear in 1998, issuing two opinions on the same day that hold that (1) the employer is automatically liable for supervisory harassment but (2) it can assert an affirmative defense and win the case if it takes effective remedial action. This is the Faragher/Ellerth rule. In other words, stop what you're doing and investigate the complaint. Or send the sexual harassment victim a check for damages and cut out the jury trial all together.

Every case has a twist. There's a few in this case. First, it is not clear if the State has an affirmative defense because it looks like Redd was unfairly suspended and given an undesirable assignment after she complained about Washington. This possible retaliation knocks out the affirmative defense, but that issue was not briefed in the district court, so the Court of Appeals leaves it alone.

The other twist is the nature of Redd's sexual harassment complaint. After Redd's supervisor touched her sexually, Redd did not complain in writing because she wanted to avoid criticism from her co-workers. But she did complain verbally to the Human Resources Director, Jose Burgos, who testified that he "did not recall whether Redd had complained about Washington 'directly' to his office." But it was enough, Burgos said, to complain to him directly. He admitted in deposition that Redd did complain to him verbally about Washington's sexual harassment, and that "if you made a complaint to me or my office, ... it would be investigated." Since Department of Parole argued in this case that it did not take any corrective action and that Redd did not sufficiently complain about the harassment, the question is whether she properly complained to require an investigation. She did, the Court of Appeals says. The reasoning is interesting.

Redd brought this case pro se, and she took the depositions herself. Her questions to Burgos in deposition are not evidence, of course, but they did incorporate facts relevant to her case, and the Court of Appeals figures that Redd would testify similarly at trial. The Circuit concludes,

In his deposition, [Burgos] stated "[his] recollection ... that [Redd] complained that Ms. Washington bumped" Redd and that Redd "viewed that as sexual harassment." Redd, conducting Burgos's deposition pro se, immediately disputed Burgos's characterization of Redd's description to him of Washington's actions, stating, "I didn't put in the complaint that she bumped me. I put in the complaint that she felt my breast on three different occasions."

While Redd's colloquy is not evidence, her deposition testimony that she had complained about Washington to Burgos is evidence, and we think it well within the leeway that is normally to be afforded a pro se litigant for the court to infer that such a face-to-face assertion of detail as to precisely what she had reported would be included in her testimony at trial. In any event, as a jury would not be required to believe Burgos's testimony that Redd, in complaining to him, had described Washington's physical contact as simply a "bump[ing]," a court considering whether the Division has established its defense as a matter of law would be required to disregard that characterization.

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