Sticking to policies could cover you in court
Published 09/06/07

An employer who has an anti-harassment policy, makes the policy known to its employees, and is diligent in taking action when there is a harassment claim made by an employee may be free from liability from a harassed employee even if that employee was harassed by his supervisor. In a decision on August 14, 2007, the New Hampshire federal trial court in the case of Scott McDaniel v. Skillsoft Corporation , determined that Mr. McDaniel is not entitled to take his case to trial against Skillsoft for the sexual harassment he claimed he suffered from his supervisor.

Skillsoft, a company that provides computer-based training to business and information technology professionals, hired McDaniel in July 2000 as an inside sales representative. McDaniel acknowledged on his first day of work he reviewed Skillsoft's anti-discrimination policy on the computer system and understood how to access it subsequently if need be. In November 2000 Rob Brown became McDaniel's supervisor, and according to McDaniel, Brown sexually harassed him over an extended period of time by making suggestive comments, sending him e-mails laden with sexual content, and touching him inappropriately.

In March 2001, McDaniel sought mental health counseling and on September 21, 2001, at the suggestion of his doctor, McDaniel stopped working and started collecting disability benefits. It was only thereafter that McDaniel first told Skillsoft's Human Resource Department about Brown's conduct during a telephone conversation on October 1, 2001. Skillsoft promptly investigated the sexual harassment complaint and assured McDaniel that he would not be retaliated against.

Ultimately, Skillsoft determined that no sexual harassment had occurred, yet Brown's conduct had been unprofessional and they terminated Brown by giving him the opportunity to resign on October 29, 2001.

While McDaniel remained on leave and ultimately exhausted both his short-term and long-term disability benefits, McDaniel never resigned from Skillsoft and acknowledged that no one from Skillsoft ever told him his employment was terminated nor did he receive any letters from Skillsoft to that affect.

McDaniel sued Skillsoft for sexual harassment employment discrimination and Skillsoft raised what is called the Ellerth - Faragher affirmative defense. This employer defense is only available when the supervisor's harassment has not culminated in tangible employment action such as a discharge, demotion, or undesirable reassignment. The Court first noted that none of those actions had occurred to McDaniel.

If an employee, after rebuffing he supervisor's sexual advances, was given an undesirable reassignment, demotion, or was fired, this defense would not be available for the employer even if every other action the employer took was reasonable. Under the Ellerth - Faragher affirmative defense, if there is no tangible employment action against a harassed employee, the employer will have a successful defense to a harassment claim if it can prove that: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

In this case, the Court found there was no genuine issue of material fact in that Skillsoft had a sexual harassment making policy, made it known and easily accessible to McDaniel, and had exercised reasonable care to prevent and correct promptly any harassing behavior.

The Court further found that McDaniel, in waiting to alert Skillsoft of the alleged harassment only after he was on medical leave for the mental health problems, had unreasonably failed to take advantage of the complaint procedure. McDaniel claimed that he felt trapped by the structure of Skillsoft and by Brown's capacity as his “supervisor”, that he believed another employee who complained to Human Resources regarding Brown had been terminated, and that a co-worker advised him to refrain from making complaints to the Human Resource Department out of concern for McDaniel's job security.

However, a nebulous fear of retaliation is not an adequate basis to remain silent. The Court found that simply pointing to the fact that Brown was his supervisor, sheer speculation as to why a co-worker was terminated, and to a conversation that he had with a co-worker evidences nothing more than a “nebulous fear” and therefore did not provide a legal excuse for him not going through the complaint procedures.

If McDaniel suffered a tangible employment action, Skillsoft could not have successfully asserted its defense. This case provides a good example as to why an employer's human resource manager should make the final decisions as to job reassignments, demotions, and firing rather than allowing supervisors or other managers to be autonomous in making those decisions as to their subordinate employees.

Such supervisors should also be made aware that if they harass not only may their job be terminated, but if there is a subsequent claim made against both the employer and the supervisor for harassment, the employer may distance itself from the supervisor and, in appropriate circumstances, not pay for that harassing supervisor's personal legal defense.

J. Daniel Marr is a director and shareholder of Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.