Work in the Time of COVID-19: FAQs for Employers

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The news has been filled lately with reports of harassment allegations against all sorts of famous people. From politicians to movie stars, many public figures are finding themselves embroiled in legal battles based on their alleged harassing conduct. Significantly, much of the alleged harassment in the news has occurred in the workplace, and such reports serve as a fresh reminder that employers must remain vigilant in identifying, preventing, and correcting harassment.

Recently, the United States Court of Appeals for the Fourth Circuit issued an unpublished opinion – McKinney v. G4S Government Solutions, Inc., No. 16-1498 (Oct. 19, 2017) – which touched on the importance of adopting effective policies and procedures for handling claims of harassment in the workplace. In McKinney, an employee (McKinney) sued his employer (G4S) for, among other claims, racial harassment that allegedly created a hostile work environment. G4S raised the commonly known Faragher/Ellerth affirmative defense to avoid liability by showing it complied with its anti-harassment policy of taking prompt action to correct the harassing behavior, and that McKinney unreasonably failed to take advantage of its complaint procedures to avoid harm. The Court’s analysis of this defense provides guidance for employers looking to implement effective policies to avoid liability for harassment claims.

The pertinent facts in McKinney showed that McKinney worked for G4S as a security officer. G4S maintained an anti-harassment policy that prohibited racial discrimination and harassment, and directed an employee to immediately report harassment to his supervisor, manager, or the corporate human resources department. Despite the anti-harassment policy, McKinney encountered multiple racist incidents while working for G4S, none of which he reported to an appropriate official in accordance with G4S’s complaint procedure. Nevertheless, when G4S finally learned of the racist incidents, it took swift action, up to and including terminating one of McKinney’s supervisors, to correct the harassing behavior.

In analyzing McKinney’s hostile work environment claim, the Fourth Circuit explained that when no tangible employment action is taken against an employee, an employer may avoid liability by establishing: (1) it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) the employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities, or otherwise to avoid harm. The Court emphasized that distribution of an anti-harassment policy serves as compelling proof that the employer exercised reasonable care to prevent and promptly correct harassment. Any evidence that an employee failed to utilize his employer’s complaint procedure, the Court noted, normally satisfies the employer’s burden of establishing the employee failed to avail himself of preventive or corrective opportunities.

Ultimately, in McKinney, the Fourth Circuit concluded that G4S enforced its anti-harassment policy to promptly correct the racial incidents McKinney encountered, and that McKinney failed to immediately report the harassment to an appropriate official pursuant to G4S’s complaint procedure. As a result, G4S was held not liable for McKinney’s hostile work environment claim.

McKinney provides several useful tips to employers in responding to workplace harassment. First, employers should maintain a detailed anti-harassment policy that prohibits all types of unlawful harassing behavior. Second, the anti-harassment policy should be circulated to all employees and periodically republished so that employees remain aware of its contents. Third, the policy should provide clear and effective reporting procedures so that employees feel comfortable reporting harassment to management. Fourth, the reporting procedures should require employees to immediately report harassment, and when reported, management should take swift action to correct the harassing behavior and prevent future harassment. Diversity and sensitivity training are two useful tools employers can use to educate workers on how to identify, correct, and prevent harassment in the workplace. Should you have any questions or concerns about developing effective anti-harassment policies and training programs to ensure your business is proactive in stemming employment-related harassment, the employment law attorneys here at Poyner Spruill are available to help.

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