Employer’s Open Door Policy Closed the Door on Harassment Liability
Posted on Dec 15, 2009 on Discrimination and Harassment, Sex by
Even with excellent harassment-free training, employers cannot always prevent harassment. That’s why your employee handbook must have a clear, effective open-door policy. Such a policy saved the Hyatt Regency Cleveland in the recent decision by the U.S. Court of Appeals for the 6th Circuit.
In Balding-Margolis v. Cleveland Arcade d/b/a Hyatt Regency Cleveland, the plaintiff, Tama Balding-Margolis, a server at the hotel restaurant, alleged sexual harassment by her supervisor and the director of security. The Court of Appeals recognized that the alleged harassment, which included numerous sexually explicit remarks and overtures, created a hostile work environment. However, the Court found that the plaintiff failed to take advantage of the defendant’s open-door policy, a policy that she understood and even took advantage of when she had other work related issues.
Citing well-known Supreme Court opinions, the Court observed that even when harassment is present, an employer is not liable if (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
In discussing the plaintiff’s failure to use the open-door policy, the court stated, “Balding-Margolis clearly took advantage of the complaint process with regard to a variety of run-of-the-mill matters, but she failed to take advantage of the policies when it mattered most.” Based on this failure, the Court of Appeals affirmed the trial court’s grant of summary judgment (a dismissal of her case).
This case demonstrates the tremendous value an effective open-door policy can provide. Among the keys to a successful policy, it must encourage employees to make internal complaints of harassment or discrimination and must clearly identify to whom such complaints should be brought. It is important to provide multiple channels in case one person is the alleged harasser. Also, the policy must clearly assure employees that they will never be punished for making a complaint.
Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.