Employers have little control over employees’ bad, impulsive decisions. However, employers have full control over how they respond to a complaint of harassment. Any employer can ensure it investigates an allegation of harassment. Failure to do so can be costly.
On December 19, 2018, a Florida federal jury rendered a verdict awarding $850,000 in compensatory and punitive damages to Elulalia Salazar-Santiago, a female worker working at Favorite Farms.
The evidence at trial showed that Santiago was hired by the company in September 2015 as a seasonal worker at its Florida location. Sometime after she began this role, Hector Cruz (“Cruz”), Santiago’s supervisor, demanded that Santiago have sex with him or lose her job. The company provided housing on its premises for employees and their family members. On November 13, 2015, Cruz entered into Santiago’s housing unit claiming that he needed to fill two empty bedrooms. Instead, he pushed Santiago into a room and raped her. Cruz threatened Santiago’s job if she reported the sexual assault. Santiago reported the assault to the company and the local legal authorities on the same day. The evidence showed that the company lacked a policy for handling sexual harassment complaints, and it failed to investigate Santiago’s complaint; and that the company retaliated against Santiago for reporting the assault by terminating her employment.
This case underscores the importance of implementing equal employment opportunity (EEO) policies – including a non-retaliation policy. Without EEO policies, employees simply do not know how to respond to complaints – even if they feel they should. Implementing and following the policies allows an employer to show that it reacted and investigated a complaint promptly and thoroughly. Employers must document the efforts they undertake when investigating a complaint – including any discipline it takes against employees or reasons why disciplinary actions were not taken. Employers must also be prepared to show that any action it takes against an employee was not in retaliation for reporting protected activity. Lastly, complaints by subordinates about their supervisors should be handled with extreme care because of the power and leverage supervisors have over a subordinate.
If you have not done so in the last year:
- Revisit your company’s anti-harassment policy (if you do not have this policy, have your counsel draft one for you);
- Make sure there is a clear procedure for how to report harassment; and
- Provide refresher training to managers and supervisors about how to report complaints.