The Importance of Reporting Procedures

By Matthew Hesketh

Employee Handbooks should have procedures for reporting harassment, and employers should take prompt remedial action once the procedures are initiated by an employee.  Employers who take such action may escape Title VII liability even in cases where an employee can show harassment.  That’s the lesson from a District Court decision last month in Texas.  Johnson v. Hyatt Corp., No. SA-17-cv-00442-OLG (W.D. Tex. Nov. 8, 2018).

The plaintiff was a waitress in a hotel bar.  She alleged sex harassment by two different customers.  The first customer made harassing comments to her for approximately two years. The employer’s handbook said employees could report harassment to HR, a general manager, or an ethics hotline, but the plaintiff only reported the harassment to her direct supervisors.  When HR learned of the harassment, nearly two years after it began, the customer was banned from the bar (and the entire hotel).  A second customer physically assaulted the plaintiff.  The plaintiff did not immediately report the incident, but the employer learned about it from a witness.  Hotel security responded in 10 minutes and removed the customer from the bar.  Police responded 20 minutes later and arrested the customer.  When the customer returned from the police station, he was evicted from the hotel.

The court found that the conduct of either customer might be severe or pervasive enough to support a hostile work environment claim under Title VII.  Applying Fifth Circuit precedent, however, the court concluded that the employer was not liable because it took “prompt remedial action” that was “reasonably calculated to end the harassment.”   The employer was not liable for the first customer’s harassment because “an employer’s obligation to take prompt remedial action is triggered only when the employee follows the reporting procedures in the employer’s anti-harassment policy.”  For two years, the plaintiff only talked to her supervisors about the customer’s conduct, which did not comport with the employer’s procedures.

The lesson:  Employers should have harassment reporting procedures and make their employees aware of them.  But don’t stop there, because not all courts are this pedantic when it comes to employees following harassment reporting policies to the letter.  All supervisors should also be trained to promptly follow up on allegations of harassment by either direct action or by escalation to more senior management.  Allegations of harassment should be taken seriously, including a prompt and thorough investigation followed by remedial measures as necessary.