Knowingly retaining a sexual harasser is a recipe for a lawsuit.
That’s a no-brainer, right? Well, maybe not for some employers.
What if you fire the harasser? Can you still be sued? I mean, shouldn’t that get you off the hook? That brings us to Lawyer’s Stock Answer #1: It depends. (Yes, I know how much you all love that answer.) OK, you might ask: “What does it depend on?” That brings us to Lawyer’s Stock Answer #2: Circumstances.
So, for example, when did you fire the employee (meaning how long did it take you to do so)? How did you fire the employee? This one’s more nuanced and I’ll get to that shortly, so read on…
Our real-life case example is EEOC v Pero Family Farms Food Co
Here, in a nutshell, is what allegedly went down:
Melissa Soetaert worked at Pero Family Farms’ Benton Harbor, MI location. Starting in July 2019, she repeatedly complained about harassment from a male forklift driver, with whom she’d had a prior romantic relationship.
Allegedly, he: made comments about her breasts and buttocks and her sexual history, accused her of having sex with other forklift and truck drivers, called her a “bitch” and told her to “suck a dick” when he refused her requests to move product, threatened to run her over with his forklift and get a female co-worker to “beat [her] ass”, and ultimately, to burn her house down to kill her and her dog.
Ms. Soetaert repeatedly complained to his supervisor and to HR. The supervisor “counseled” him allegedly telling him more than once “We don’t want to lose you.” The harassment didn’t stop. (Not surprised, are you?)
The supervisor then tried to stagger their schedules, but Ms. Soetaert often worked overtime, and the forklift driver would come into work early to harass her.
When she complained to HR, it told her it couldn’t act until she got a restraining order. So she did. 5 months after the harassment allegedly began, Only then did Pero Farms fire the forklift driver, but.. wait for it… wait for it—
It deemed him eligible for re-hire.
Ms. Soetaert filed an EEOC charge. The EEOC made conciliation efforts and Pero Farms said it wasn’t interested. Hence the lawsuit.
Yes, Pero Farms did “something”. It talked to him. It tried staggering shifts. It fired him. Some might ask, “Isn’t that enough?”
Not when you give a mixed message. “Counseling” an alleged harasser, but telling him/her “We don’t want to lose you”, keeping him/her in the same space as the complainant, who has complained repeatedly, refusing to do anything until the complainant gets a restraining order, firing the alleged harasser but deeming him/her eligible for re-hire absolutely 100% doesn’t cut it.
Why would this forklift driver have felt he needed to change anything about his behavior? The “counseling” at most was a slap on the wrist. Why would he feel it now, even after being fired, when he can come back and re-apply? The firing, at best is a glorified, unpaid suspension, done half-heartedly.
Why did this employee have to get a restraining order before HR would take any steps to address such serious allegations? An employer is obligated under federal law (and many state laws) to provide their employees with a safe, harassment and discrimination-free workplace. That obligation exists independently of whether law enforcement authorities can or do prosecute him/her.
Yes, this employer ultimately “did something”. But the manner in which it chose to act seems to have been too little too late. Pero Family Farms’ leadership and HR teams were very slow to take any decisive action. The “counseling”, at most was a slap on the wrist, especially when coupled with telling the employee, “We don’t want to lose you”. Similarly, keeping the alleged harasser in the same space as his target at best invited more harassment, which actually happened. Compelling an employee to get a restraining order before taking any significant action will not protect an employer from liability or even a lawsuit. I also note that the EEOC, with its limited resources tends to be very selective about which cases it takes to court. If the EEOC felt justified in suing, despite this employers “efforts” to address the harassment, employers should pay attention.
This lawsuit was absolutely, 100% avoidable. So is/was any fallout, like negative press, increased turnover, damage to employer and company brand, etc. Pero Farms could have made very different choices and had a very different outcome.
You can, too. The choice is yours.
Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.janetteleveylaw.com to contact me for a complimentary 20-minute consultation.
Watch my podcast interview on Good Morning HR with Mike Coffey on Mental Health and the ADA.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ
