Most sexual harassment and racial harassment cases have a front-end and back-end. The front-end consists of the underlying acts of sexual harassment (or racial harassment) against the employee, for which the employee complained. The back-end consists of the employer’s investigation of and response to the employee’s complaint. It can be tempting to conceptualize the liability-creating acts as occurring only on the front-end of the case, and to use the back-end solely to undermine the employer’s affirmative defenses or as support for punitive damages. Undoubtedly, a halfhearted, botched or otherwise perfunctory back-end response to a sexual harassment complaint will serve these purposes. But can the employer’s investigation of and response to a sexual harassment complaint also be used together with the front-end acts of harassment to create an entire case theme – one that weaves together both the front and back ends into a single story about the employer’s self-serving anti-discrimination policies, its lack of interest in enforcing those policies, the sexual harassment that the employer could have prevented, and the employer’s lazy, uncritical and incomplete investigation of the employee’s complaint? We think it can. Sexual harassment cases are often – though not always – comprised of many acts of harassment that, together, meld into what courts call a hostile working environment. That is, a work environment where the terms, conditions or privileges of employment have changed sufficiently because of sex to create a claim for discrimination. Yet, it is worth thinking through this question – just what are the “terms, conditions and privileges” of employment? One could write a book in response, but for our purposes, it is enough to say that the “terms, conditions and privileges” of employment are what the employer says they are and what the employer allows them to be in practice. We will focus here on what the employer says they are. Most employers have adopted strongly worded EEO (Equal Employment Opportunity) policies and strongly worded anti-discrimination policies. Those policies will be in writing and are usually found in an Employee Handbook, on the employer’s intranet or posted on a bulletin board. The policies usually say something like this:
It is the policy of the XYZ Corp. to provide a work environment for all employees free from discrimination and harassment because of sex, sexual orientation, race, religion, color, disability, age, pregnancy, child-birth, national origin, veteran status, genetic information, or any other unlawful basis. XYZ will comply with and strictly enforce all federal, state, and local laws that prohibit discrimination or harassment based on sex, sexual orientation, race, religion, color, disability, age, pregnancy, child-birth, national origin, veteran status, genetic information, or any other unlawful basis. XYZ absolutely will not tolerate discrimination or harassment. If an employee feels that he/she is being harassed, the Company expects the employee to bring his/her complaint to its attention. An employee who brings a complaint to the XYZ’s attention is assured that the matter will be fully and fairly investigated, and dealt with promptly and in confidence to the extent possible. Only those persons who need to know will be involved or informed. XYZ will take immediate and appropriate corrective action, including disciplinary measures as warranted.
In this policy, the employer promises to “strictly enforce” the anti-discrimination laws, to “fully and fairly investigate” employee complaints, and so on. These promises create “terms, conditions and privileges” of employment. An adroit employee-side sexual harassment lawyer should use the employer’s promises to develop the back-end of the liability case. Spend at least one full deposition exploring whether the employer “strictly enforced” the law, whether its intolerance of discrimination or harassment was truly “absolute,” and critically, whether the employer conducted a “full, fair and prompt” investigation,” that it followed with “immediate and appropriate corrective action.” In most cases, there will be a wide gulf between the employer’s promises and assurances on paper and how it actually acted. A very adroit sexual harassment lawyer will make this the front-end of the liability case, a story of paying lip-service to the law, of broken promises and of preventable harm. The back-end will now be the harm that the employer could have prevented (or at the very least mitigated) had it taken its own policies and promises seriously. The focus of the case remains at all times on the employer, where it should be.