In light of evidence that not all employees were given training or information about the employer’s sexual harassment policy, the Fifth Circuit recently reversed the grant of summary judgment in favor of an employer. The court ruled that the evidence was sufficient to create a fact issue as to whether the employer took reasonable steps to prevent sexual harassment. Pullen v. Caddo Parish School Board, 2016 U.S. App. LEXIS 13254 (5th Cir. July 20, 2016). In Pullen, the plaintiff claimed her supervisor sexually harassed her and continued to do so after she worked in a different department and was no longer under his supervision. During her employment, the plaintiff did not complain contemporaneously about the supervisor’s alleged harassment.
The facts showed that the employer posted its sexual harassment policy on bulletin boards around the central office and that the policy was also available online. The lower court concluded that plaintiff’s failure to report the alleged harassment for more than two years was unreasonable. However, the Fifth Circuit found that the plaintiff produced evidence, including testimony from other employees, that if believed would show that employees were not trained on sexual harassment; were not informed of the existence of the policy; were not shown where to find it; and were not told whom to contact regarding harassment. The appellate court thus held there was a genuine dispute of material fact as to whether the employer took reasonable steps to prevent sexual harassment.
This decision serves as a reminder to employers of the importance of distributing their anti-harassment policy to all employees and conducting training on the policy; the existence of a policy alone is insufficient. Despite the efforts taken by the employer to post the policy, there was no proof the plaintiff actually was aware of it. Best practices dictate that employers obtain a signed acknowledgement from each employee proving receipt and conduct regular training.