Jottings By An Employer's Lawyer

Friday, June 24, 2005

Handling of Sexual Harassment Charge "Not Fully Endorsed" - But Good Enough To Reverse Jury Verdict


Jane Tatum, a nurse at a County Health unit, had what she and her attorney must have thought was a simple and straight forward sexual harassment case:
June 14 -- alleged act of harassment by co-employee ("He then grabbed Tatum’s hand, placed it on his penis, and asked Tatum, 'See how hard it is? Doesn’t that feel good?' ") Not reported by Tatum.
June 15 -- co-employee asks Tatum to come over for the weekend when his wife and granddaughter will be away. That afternoon Tatum report the incidents to the administrator of the unit, who took no action.
June 20 -- Tatum deicdes to confront the harasser and asked the administrator to accompany her. After she asked the harasser to quit harassing her, he told her to get out of his office, but never harassed her again. Leaving the office, the administrator told Tatum there would be "hell to pay" if she pursued the complaint further.
June 22 -- Tatum complained to the administrator's supervisor that no action with respect to her complaint had been taken.
June 29 -- The head of Human Resources and an in house attorney began an investigation, interviewing Tatum and her co-workers, about 19 in all.
July 11 -- investigators completed their investigation and concluded no sexual harassment because there were no witnesses and it was denied by the harasser. Another employee's report of similar (although less crude) behavior by the harasser was not credited as there was "a lack of corroboration."
September 6 -- Tatum resigned because she was being "shunned" by the other employees. About a month later, for the first time Tatum was told the results of the investigation.
The case was as compelling to a jury as to Tatum as it found for her not only on the harassment claim, but that she had been constructively discharged.

The trial court was less sympathetic, granting the employer's post-trial motion for judgment as a matter of law. The employer argued the conduct was not pervasive and it had taken prompt and effective action to end the harassment. The appeals court did not address whether the conduct was pervasive, agreeing that Tatum had not established that the the employer failed to take prompt and effective action to end the harassment.

Although not fully endorsing the handling of the investigation, the Court set out the issue and its finding in one paragraph:

Tatum contends that the Arkansas Department of Health failed to take her complaint seriously because of the amount of time it took to complete the investigation. Tatum presented evidence that the investigation was not begun until two weeks after her complaint and took eight weeks to complete. During the investigation, Tatum was required to work in the same office as her alleged harasser. While we do not fully endorse the Appellee’s handling of Tatum’s complaint, we do not find the investigation falls below the required standard. Tatum admits that no harassment occurred during this period. The fact that the investigation took two and half months does not lead us to the conclusion that the investigation was necessarily faulty. Two qualified professionals did a thorough job of investigating Tatum’s complaint and issuing a finding. There was no further harassment during the investigation period. We believe Tatum failed to show that the Arkansas Department of Health failed to complete a prompt and effective investigation. Without this showing, Tatum’s hostile work environment claim fails. (my emphasis)
Tatum v. Arkansas Department of Health (8th Cir. 6/20/05) [pdf]. The Court also reversed the constructive discharge finding, holding there was no evidence that her actions were objectively reasonable or that the employer was trying to force her to quit.

While on first blush, the Court's ruling may seem harsh, particularly in overturning a jury verdict, in the end the key factor was that the harassment stopped. That is the legal test, not the efficacy of the investigation. Although the lines may at first seem somewhat blurred, it is an important distinction. It is the difference between a court enforcing a legal standard versus imposing its own view of ideal personnel practices. Courts, for the most part, realize the latter role is one for which they are neither empowered nor particularly well suited.


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