A state appellate court recently upheld a ruling in favor of an employee who claimed that she was sexually harassed by her supervisors. Although the employer had adopted a sexual harassment policy, the Tennessee Court of Appeals held, the company was unable to satisfy the first element of the Ellerth-Faragher affirmative defense because it failed to properly implement the policy. Mays v. Music City Record Distributors, Inc., No. M2006-00932-COA-R3-CV, Court of Appeals of Tennessee, at Nashville (July 27, 2007).

Factual Background

Shannon Mays was employed by Music City Record Distributors, Inc. (MCRD) for only a couple of days when Carl Hunter, Vice President of Advertising, asked her out on a date. Hunter allegedly visited Mays’ office several times a week to ask her out and make inappropriate suggestions. Mays claimed that she was subjected to sexually offensive conduct by several other company executives as well.

Mays sued MCRD alleging sexual harassment under the Tennessee Human Rights Act (THRA). The trial judge ruled in Mays’ favor and MCRD appealed.

Legal Analysis

On appeal, MCRD did not challenge whether Mays was subjected to sexual harassment or a hostile work environment, instead focusing on the availability of the Ellerth-Faragher affirmative defense. Employers may raise this defense in cases in which a tangible employment action has not been taken against the employee and the following two elements are met: (1) the employer exercised reasonable care to prevent and to promptly correct harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. The Tennessee Court of Appeals concluded that MCRD failed to satisfy the first of these requirements.

Although MCRD’s employee handbook prohibits sexual harassment and outlines a complaint procedure, the court found that Mays had not received a copy of the handbook when she was hired. Nonetheless, the court found that Mays had promptly reported the harassment to her supervisor. Mays’ supervisor, who had not been informed of the policy or trained on how to handle complaints, told her that if he objected to the behavior he would probably lose his job and that when other people had complained nothing was done. The court concluded that MCRD was not able to satisfy the first prong of the affirmative defense by merely adopting a facially reasonable sexual harassment policy; proper implementation of the terms is required as well. Thus, the court affirmed the trial judge’s ruling in favor of Mays.

Practical Impact

According to Craig Cowart, a shareholder in Ogletree Deakins’ Memphis office: “This decision sends a clear message to Tennessee employers that simply adopting a good policy prohibiting sexual harassment is not enough. Employers must also ensure that the policy is effectively communicated to all employees, especially supervisors. It is also imperative that employers ensure the effectiveness of their policies by providing training on a regular basis so that employees and supervisors will know how to properly implement the policy.”