EMPLOYERS CAN AVOID LIABILITY THROUGH A PROMPT RESPONSE
As published in The Buffalo Law Journal July 11, 2002

EMPLOYMENT ISSUES
LINDY KORN

The facts of the case presented below are noteworthy because they demonstrate that sexual harassment is about power and the abuse of power in the workplace. The employer’s prompt response afforded it the affirmative defense, allowing it to avoid liability. Perhaps the central message of this ruling has to do with risk management for the future.

The facts
The employee an 18-year-old restaurant delivery worker at the time was assigned to close the restaurant with his supervisor. His supervisor accused him of stealing and ordered him to spank himself with his own belt. The employee, out of fear, followed the supervisor to the men’s room where the supervisor watched the employee lower his pants, reveal his buttock and hip, and spank himself.

The employee lodged a complaint the next day. The employer immediately suspended the supervisor, who resigned prior to returning from suspension. The employee never worked with the supervisor after the incident.

What the court said
The court held in this case (Yerry v. Pizza Hut of Southeast Kansas, 2002 WL201758, N.D.N.Y. 2/6/02) that while the acts alleged could constitute intimidation sufficiently severe or pervasive to alter the working conditions, the employer nonetheless would avoid liability by properly availing itself of the Farragher/Ellerth affirmative defense, which requires that:

• The employer took reasonable steps to prevent and correct the behavior; and
• Either the plaintiff did not avail himself or herself of these remedies, or the
  employee complained and the employer took prompt appropriate remedial action.

The court also noted that the employer did not take any adverse actions towards
complaining employee, that the immediate suspension of the supervisor was sufficient corrective action, and that the supervisor’s resignation precluded the need for any preventive steps.

The court held that because the employer was not liable, the supervisor could not be liable as an aider or abettor.

Take-home message
Four questions come to mind based on this set of facts:

• Was there supervisory sexual harassment training that was mandatory at this Pizza Hut? Had there been prior complaints about this supervisor regarding his behavior at work?
• Will the employer conduct training for other supervisors to ensure that proper procedures are followed?
• Will the employer take this opportunity to train employees on zero tolerance and reinforce the company’s policy?

The good news is that the employee complained immediately, the employer responded swiftly and the
employer avoided liability in this instance.

In order to retain good employees, this incident should be used as a tool for communicating the company’s policies and procedures. The ability to communicate with the workforce allows the seeds of prevention to blossom – affording the employer and the employees a healthy and safe working environment.

Lindy Korn is president of Diversity Training-Workplace Solutions, Inc. and is of counsel to Siegel Kelleher and Kahn, representing plaintiffs in discrimination claims.