Court Finds Focus Should Be On Reasonableness Of Efforts
The Eleventh Circuit Court of Appeals recently dismissed a sexual harassment lawsuit brought against an employer, stressing that federal courts should avoid second guessing or “micro-managing internal investigations.” According to the Eleventh Circuit, the court’s focus should be on the “reasonableness of the investigation,” rather than vetting the specific nuances of the company’s response. Baldwin v. Blue Cross/Blue Shield of Alabama, No. 05-15619, Eleventh Circuit Court of Appeals (March 19, 2007).
Susan Baldwin was a marketing representative for Blue Cross in Huntsville, Alabama. Scott Head became Baldwin’s boss in 2000. The two did not have an amicable working relationship. Head allegedly referred to Baldwin as “babe” and told her “the only reason you are here is because we needed a skirt in the office.” The workplace, Baldwin claimed, also was littered with offensive language.
During a business trip to Birmingham in July 2001, Head allegedly propositioned Baldwin and invited her to spend the night in his hotel room. Baldwin declined. A few days later, Baldwin claimed, Head called her into his office and requested that she “blow him.” She refused. Although Baldwin realized she was dealing with someone “who wasn’t quite right,” she did not complain to management or Human Resources.
Several weeks later, Baldwin and Head had a significant disagreement regarding an expense check for a trip cancelled because of 9/11. She again decided against reporting her concerns to management. It was not until disputes arose regarding prospective clients that Baldwin decided to complain to management about her work environment.
The company conducted an investigation into Baldwin’s hostile work environment claims. During the investigation, Head admitted using some vulgar language but otherwise denied Baldwin’s allegations. Because Blue Cross was unable to independently substantiate Baldwin’s hostile work environment claims, the company issued a warning to Head that such behavior could result in his termination.
Baldwin was not satisfied with the company’s response and voiced her displeasure. Blue Cross offered the assistance of an industrial psychologist to counsel both employees and monitor their interactions, but Baldwin refused. Blue Cross then offered to transfer Baldwin to its Birmingham office. Again, Baldwin refused. She testified “I told Rick [King] I would not work for Scott Head and those are the facts of this case.”
Because Baldwin refused to work with Head, rejected counseling, and refused to work in a different office, the company terminated her employment. Baldwin then filed a lawsuit against Blue Cross for sex discrimination under Title VII of the Civil Rights Act alleging that Head’s harassing behavior created a hostile work environment and that she was fired in retaliation for her complaints. Blue Cross retained Ogletree Deakins to defend against these claims. The trial judge dismissed the suit, and Baldwin appealed to the Eleventh Circuit Court of Appeals.
Baldwin first argued that Blue Cross discriminated against her on the basis of her sex when it offered to transfer her to the Birmingham office and when it terminated her employment. The Eleventh Circuit held that the transfer offer was not a tangible employment action and that “[f]iring an employee because she will not cooperate with the employer’s reasonable efforts to resolve her complaints is not discrimination based on sex, even if the complaints are about sex discrimination.”
The court then examined Baldwin’s hostile environment claim. The use of profanity, the court noted, was indiscriminate and “[i]t would be paradoxical to permit a plaintiff to prevail on a claim of discrimination based on indiscriminate conduct.”
The court then found it unnecessary to decide the “hostile environment” issue and turned its attention to the “Faragher-Ellerth defense.” Baldwin admitted that Blue Cross had a valid anti-discrimination policy prohibiting harassment that was effectively communicated to all employees. She disagreed, however, with whether Blue Cross exercised reasonable care to correct promptly any sexually harassing behavior. The court found that “[t]he requirement of a reasonable investigation does not include a requirement that the employer credit uncorroborated statements the complainant makes if they are disputed by the alleged harasser.”
Further, the court refused to delve into the procedural nuances of an employer’s investigation by imposing a “due process, trial-type” standard. A company’s response must be “reasonable,” not procedurally perfect, the Eleventh Circuit held. The court observed that Baldwin simply waited too long to complain. Finally, the court recognized that counseling and warning the alleged harasser often satisfies the employer’s duty to take action, specifically noting that “the complainant does not get to choose the remedy.”
Concerning Baldwin’s retaliation claim, the court found that Baldwin was fired because she failed to accept the company’s proposal for counseling or transfer, not because she complained about Head’s conduct. When Baldwin refused on three different occasions to work with Head, Blue Cross took her at her word and determined that it had no reasonable option other than terminating her. Thus, the court upheld the dismissal of her suit.
The practical implications of this case are three-fold. First, the court provided employers with much needed guidance as to what is appropriate when responding to a “he-said, she-said” case. According to the Eleventh Circuit, employers should be held to a standard of reasonableness. Thus, once the investigation is complete, and if there is no independent corroborating evidence, an employer reasonably may determine that the results are inconclusive and may satisfy its duty by simply warning the alleged harasser. Moreover, the complainant does not dictate what, if any, action should be taken against the alleged harasser. The employer’s duty is to stop the alleged harassment, not to placate every demand of the alleged victim.
Second, an employer’s policies should require an allegedly aggrieved employee to report all allegations of harassment immediately. One of the keys to the court’s decision rejecting the claims was the fact that Baldwin waited over three months from the time of the first proposition to complain.
Third, an employee must cooperate with the employer’s investigation, and can be held accountable if she refuses to comply with the company’s reasonable remedial measures or other work directives.
Note: This article was published in the April/May 2007 issue of The Employment Law Authority.