By Mark Wiletsky 

Most employers today have policies prohibiting harassment.  But if your supervisors and employees are not trained on those policies, and if harassment is allowed to occur, your organization could face significant liability.  

Female Bailiff Alleges Egregious Sexual Harassment By Her Supervisor 

Camille Kramer was employed as a jailor and later as a bailiff by the Wasatch County Sheriff’s Department.  While working at the jail, male co-workers allegedly made offensive comments about Kramer’s breasts, she was subjected to sexually explicit materials on work computers and had to listen to graphic sexual conversations.  Kramer complained to Sheriff Kenneth Van Wagoner, the head of the Sheriff’s Department.  Sheriff Van Wagoner said he’d “take care of it” and proceeded to call a staff meeting at which he used Kramer as a volunteer to act out the exact harassing scenarios that she had reported to him.  Van Wagoner told the group: “[t]hat’s harassment. Don’t do it.”  When the harassment got worse after the meeting, Kramer complained again to the Sheriff, who told her she might want to avoid that area. 

Kramer transferred to the courthouse to work as a bailiff.  Sergeant Rick Benson, also a bailiff, supervised both Kramer and one other bailiff. According to Kramer, Benson subjected Kramer to a campaign of sexual harassment and sexual assault that ranged from demanding foot rubs to groping and rape.  Kramer did not report Benson’s conduct to the Sheriff because Benson threatened her job if she said anything and she believed nothing would be done about it anyway. 

Later, Kramer told female co-workers about the rape and assault. She also told them that she was having a consensual affair with another man and was pregnant from that relationship.  Sheriff Van Wagoner found out about Benson’s sexual assault of Kramer and her pregnancy from one of Kramer’s co-workers.  He assigned a detective who was not trained in human resources or in conducting sexual harassment investigations to look into the misconduct.  The detective focused his investigation exclusively on finding out who fathered Kramer’s baby, not on Benson’s conduct.  When it was learned that Kramer was involved with a married county firefighter, the detective urged Kramer to resign and Kramer was disciplined with her certification suspended for six months for “actions unbecoming an officer.”  Although the Sheriff decided to terminate Benson, Benson resigned before that could happen.  

Benson directly supervised Kramer’s work as a bailiff.  He wrote her performance evaluations, which could cause her to be promoted, demoted or fired.  He could create a corrective action plan for her which might include transfer, reassignment or separation, if he deemed her performance was substandard. At all times, however, the Sheriff was the final decision-maker and the only person who had the actual authority to take tangible employment actions against Kramer. 

Kramer sued the County and the Sheriff for sexual harassment in violation of Title VII, among other claims.  The district court granted summary judgment to the County, holding that because Benson did not have the actual authority to unilaterally fire Kramer, the County could not be vicariously liable for Benson’s conduct.  It also ruled that supervisor status could not be based on Benson having apparent authority over Kramer because no reasonable juror could find that Kramer reasonably believed that Benson had the power to fire her.  On appeal, the Tenth Circuit Court of Appeals reversed the grant of summary judgment in favor of the County and remanded the case to the trial court for further proceedings. Kramer v. Wasatch Cty. Sheriff's Office, No. 12-4058 (10th Cir. Feb. 25, 2014).

Delegation of Power and Apparent Authority 

The Tenth Circuit pointed to wording in the Supreme Court’s recent case, Vance v. Ball State, 570 U.S. ___ (2013), to determine whether the County could be vicariously liable for Benson’s conduct.   Vance held that a “supervisor” for purposes of determining employer liability for workplace harassment under Title VII includes only those individuals who have the authority to take tangible employment actions against the victim.  Although that seemed like a bright-line test, the Tenth Circuit stated that if Benson had or appeared to have the power to take or substantially influence tangible employment actions or used the threat of taking such actions to subject Kramer to a hostile work environment, then the County could be vicariously liable for Benson’s severe or pervasive sexual harassment.  Because the Court found sufficient evidence in the record that raised genuine issues of fact as to whether the Sheriff effectively delegated to Benson the power to cause tangible employment actions by relying on Benson’s recommendations and performance evaluations when making decisions regarding firing, promotion, demotion and reassignment, the Court reversed the grant of summary judgment to the County.  The Court stated that even if the Sheriff took some independent analysis when considering input from Benson on employment decisions, Benson could qualify as a supervisor if his recommendations were among the proximate causes of the Sheriff’s decision-making.  The Court also found that there was evidence to suggest that Kramer reasonably believed that Benson had the power to take tangible employment actions against her meaning Benson qualified as a supervisor under apparent authority principles.  

No Tangible Employment Actions 

If Benson is a supervisor under the definition established in Vance, the County would be strictly liable for Benson’s harassment if it resulted in a tangible employment action.  Kramer asserted that four actions constituted tangible employment actions.  First, she argued that Benson’s rape was a tangible employment action.  The Court disagreed, stating that while the rape was inarguably a severe form of sexual harassment, Benson did not commit the rape in an official company action.  Next, Kramer asserted that Benson prepared a negative performance evaluation of her and argued that was a tangible employment action.  However, Benson improved the evaluation after speaking with Kramer and before submitting it to the Sheriff, so even though the threatened poor evaluation contributed to a hostile work environment, it did not constitute a tangible employment action.  The Court similarly rejected the final two alleged employment actions, a denial of leave time and assigning Kramer to an unfavorable duty that denied her the training needed for a promotion.  The Court found that the loss of one day’s leave time was not a “significant” change in Kramer’s benefits and the assignment to an unfavorable duty did not have a deleterious economic consequence for Kramer or reduce her opportunity for advancement.  Finding that Kramer did not suffer a tangible employment action, the Court remanded for consideration of whether the County established the Faragher/Ellerth defense. 

Teachable Moments from the Tenth Circuit 

The Court’s thorough discussion of Benson’s conduct and what the Sheriff did/did not do when he learned of potential misconduct reveals many teachable moments for employers.  First and foremost, make sure to train your supervisors and employees on prohibited forms of harassment, and how important it is to promptly and appropriately address issues when they arise.  For example, when an employee reports harassing behavior, as Kramer did when she first worked at the jail, take it seriously.  Do not simply tell workers to “stop it” or tell the person who complained to “avoid the area” or stay away from the perpetrators.  Make sure that the person conducting the investigation is trained in workplace harassment investigations.  Do not focus the investigation solely on the potential wrongdoing of the complaining party, as the detective did when trying to determine the father of Kramer’s baby.  Talk to all parties implicated in the misconduct, including any witnesses who may have knowledge of the hostile work environment.  If the investigation reveals harassing behavior, take immediate steps to correct it and prevent it from happening again.  Follow up with the person who reported it to make certain your corrective actions are effective and that no further incidents have occurred. And finally, do not retaliate against the complaining employee.  Learning from these missteps will go along way in minimizing your risk of harassment liability.

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