When “Some Policy” Is Not “Enough Policy”  
by James H. Kizziar, Jr., Bracewell & Patterson, L.L.P.

A recent decision of the federal appeals courts emphasizes the need for employers to implement sexual harassment policies and procedures that pay more than lip service to compliance with the requirements of federal and Texas anti-discrimination laws. In Gentry v. Export Packaging Co., 84 Fair Empl. Prac. Cas. (BNA) 1518 (7th Cir. Jan. 25, 2001), the court reviewed the employer’s appeal of a jury verdict in favor Lesley Gentry (“Gentry”), who alleged that she had been sexually harassed by her supervisor, Leo Broughton (“Broughton”). In April 1998, Gentry transferred into the technical services department of export as an administrative assistant under Broughton’s supervision; her desk was located in the same office as Broughton’s. During the eleven years Broughton had worked for Export,  he had attended two sexual harassment training sessions.

In her lawsuit, Gentry raised various claims, including hostile work environment sexual harassment and constructive discharge. Gentry claimed that during a four-month period, Broughton subjected her to 40 hugs, 15 shoulder rubs, a kiss on her cheek, and two instances where Broughton patted her cheeks. Gentry also claimed numerous instances where Broughton (i) made offensive statements to her (including a request that she “try out the back counter” with him and that her “ clothes would look better on the floor”) and (ii) gave her a sexually explicit daily calendar and asked her to pick out her favorite days. Just before her desk was moved into Broughton’s office, Gentry heard Broughton’s supervisor, Export’s Chief Financial Officer and Executive Vice President, say that she was going to become a “sex”retary. Gentry asserted that she resisted Broughton’s advances and on two occasions brought his conduct to the attention of Export’s Human Resources Benefits Coordinator. The jury returned a verdict in favor of Gentry for $25,000, consisting of $10,000 compensatory damages and $15,000 punitive damages. Export appealed, seeking to reverse the jury award.

Relying on two 1998 U.S. Supreme Court decisions (Burlington Industries v. Ellerth, 524 U.S. 742 and Faragher v. City of Boca Raton, 524 U.S. 775), Export argued that it had implemented a valid sexual harassment policy and that Gentry had failed to avoid the harm caused by Broughton’s actions by not taking advantage of the policy’s complaint procedure. While the Supreme Court in Ellerth and Faragher held that employers could be held liable for a sexually hostile work environment  created by a supervisor with immediate (or successively higher) authority over the complaining employee, the Supreme Court also provided employers with an affirmative defense to hostile environment sexual harassment complaints where the employer could show two elements: (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, or to avoid the harm of the harassing conduct.

The Court of Appeals first examined Export’s sexual harassment policy to determine if the company took adequate preventive measures against sexual harassment. The policy stated, in part, as follows:

Any employee who believes that he or she has been subjected [to] or witness to sexual harassment should immediately report the conduct to the immediate supervisor, division manager, or Human Resource Representative, whichever the employee feels is appropriate, under the circumstances. The incident or behavior will then be referred to the Human Resource Director and a prompt and confidential investigation will be conducted. There will be no reprisals or retaliation of any kind against an employee who brings such an issue before management. Although Gentry acknowledged that she was aware of Export’s sexual harassment policy, it was undisputed that Export had never informed its employees of the identity of the “Human Resources Representative” designated in its policy. The court stated that because no consensus existed within company  management regarding who assumed the position of Human Resources Representative and Export never informed its employees of who held the position, the “divergence of opinions suggests that Export appears not to have taken the necessary steps to fully and effectively implement its sexual harassment policy. If Export desired its policy to provide a viable means by which an employee could report sexual harassment, then the company should have made it more evident who assumed the Human Resources Representative position. A reasonable jury could have found that such a deficiency in Export’s sexual harassment policy reveals that it failed to take appropriate steps to prevent sexual harassment.”

In determining whether Export had a valid procedure in place to address complaints of sexual harassment, the court also noted that Gentry had talked to a Human Resources representative on two  or three occasions about work-related concerns, including one occasion where her concerns included office discussions and “a lot of shoulder rubbing, touching, and interoffice dating.”

 Gentry testified that after she received a hug from Broughton that upset her in April, 1998, she again called the Human Resources representative and told her that she was “really uncomfortable with the touching and the rubbing and the hugging” in the office and inquired about the possibility of a transfer. When Gentry told the Human Resources representative that someone she worked with frequently and closely was the source of her problems, the representative herself “came up with the name Leo.” Gentry testified that the representative responded by saying that this was “his personality, that was how he worked. He- had-been-there-for-years type thing. There was really nothing that had ever been done about it and she didn’t think that there ever was [going to be anything done.]”

The Human Resources Director testified that while Gentry may never have used the term “sexual harassment”when talking with Human Resources, it would not be necessary to employ the term to activate Export’s policy. The Director elaborated that if an employee said she was uncomfortable with the supervisor’s touching and would like a transfer to another department, those comments would be enough to establish the employee was complaining about sexual harassment.

The appeals court upheld the verdict against Export, holding that it was not unreasonable for the jury to believe Gentry’s testimony that she had reported sexual harassment to Export. Thus, because the Court found that she had attempted to correct the harassment, the company could not escape liability through the Ellerth/Faragher affirmative defense.

It is clear that although Export implemented a sexual harassment policy, even company officials were confused about the identity of the Human Resources official to whom employees should report suspected problems. It cannot be emphasized enough that putting a policy on paper is only the beginning. The policy itself must be clear and unambiguous, it must be disseminated to employees in a way that leaves no room for argument that they should know exactly to whom they should complain and the employer must provide a fully workable “effective grievance mechanism” which promptly addresses employee concerns about sexually offensive conduct in the workplace. Only when an employer has fulfilled all of these requirements can it expect to be shielded from potential liability for sexual harassment.

James H. Kizziar, Jr., a partner with Bracewell & Patterson, L.L.P. in the firm’s San Antonio office,represents management in all aspects of labor and employment law.

The author gratefully acknowledges the assistance of Penelope W. Robinson, a paralegal with Bracewell & Patterson, L.L.P., in the preparation of this article.

SOURCES OF AUTHORITY
wrestling with qualified immunit in §1983 litigation:
AN UPDATE 
by John W. Bateman

Recently, the Supreme Court rejected the holding by the Ninth Circuit that the second step of the qualified immunity inquiry (whether the officer was objectively reasonable) and the merits of the Fourth Amendment excessive claim (where the officer used an objectively reasonable amount of force) involved the same analysis. Saucier v. Katz, 121 S.Ct. 2151, 2157 (2001). The Supreme Court held that the Ninth Circuit’s approach “could undermine the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of . . . insubstantial claims on summary judgment.” 121 U.S. at 2157. Despite the Ninth Circuit’s “surface appeal,” the Supreme Court concluded that neither the history of qualified immunity nor its justifications exempt claims made under the Fourth Amendment from a qualified immunity analysis. Id.

The Court rejected the argument that the merits of a Fourth Amendment claim already afforded latitude for an officer’s reasonable mistakes. Id. at 2157-58. As the Court recognized, the merits of a Fourth Amendment claim are viewed under the standard of objective reasonableness, and, in light of the split-second judgment required of officers, this reasonableness “should be judged from that on-scene perspective.” 121 S.Ct. at 2158.

However, qualified immunity “has a further dimension” because it acknowledges that “reasonable mistakes can be made as to the legal constraints on particular police conduct.” Id.

In other words, the officer may be aware of all the relevant facts, but be mistaken as to what the law requires or allows in a given scenario. Id. If that is the reasonable mistake (what the law allows), then the officer has qualified immunity. Id. Thus, an officer may have conducted an unreasonable use of excessive force under the Fourth Amendment, yet still have qualified immunity for the reasonable mistakes made. Id. at 2158-59.

For purposes of its analysis, the Supreme Court assumed that a constitutional violation was alleged, while acknowledging that district courts and courts of appeal must actually make such a determination, and proceeded to the question whether this violation was clearly established. Id. at 2159. Respondent Elliot Katz (Plaintiff at the District Court) filed suit after being arrested while protesting a speech given by then Vice President Al Gore at a military base. Id. at 2151. The Court held that the “gratuitously violent shove” used to push him into the police van did not violate the Fourth Amendment. Id. at 2159. It was clearly established that an officer has the right to use some degree of force to arrest or make an investigatory stop, and that a reasonable officer could believe that “hurrying respondent away from the scene, where the Vice President was speaking and respondent had just approached the fence designed to separate the public from the speakers, was within the bounds of appropriate police responses.”  Id. at 2160.

Although the concurring opinion agreed that the police officer’s motion for summary judgment should have been granted, it refused to incorporate a “second, overlapping objective reasonableness inquiry purportedly demanded by qualified immunity[.]” Id. at 2160 (Ginsburg, J., concurring). As Justice Ginsburg stated, “paradigmatically, the determination of police misconduct in excessive force cases and the availability of qualified immunity both hinge on the same question: Taking into account the particular circumstances confronting the defendant officer, could a reasonable officer, identically situated, have believed the force employed was lawful?” Id. at 2161 (Ginsburg, J., concurring). Under that question, Justice Ginsburg agreed that the officer should not face the burden of trial. Id. Critically, the Respondent failed to proffer any evidence that the officer even pushed or shoved him. Id.

First criticizing the majority for skipping the first-step of finding an alleged constitutional violation, the concurring opinion then attacked the “duplication inherent in [the Court’s two-step scheme.]” Id. at 2162 (Ginsburg, J., concurring). Instead, Ginsburg continued, excessive force cases were not “meet” for the qualified immunity two-part inquiry, because excessive force cases do not involve a determination analogous to decisions made by officers in other areas of the law. Id. at 2163. “[W]hether an officer’s use of force was within a range of reasonable options, the decisionmaker is also (and necessarily) answering the question whether a reasonable officer could have believed his use of force to be lawful.” Id. (citations omitted). As Justice Ginsburg noted, where two conflicting stories are presented as to what happened on the street, summary judgment is not and should not be proper. Id. at 2164.

Justice Souter dissented, for the reason that the case should have been remanded to allow the lower courts an opportunity to apply qualified immunity. Id. at 2164 (Souter, J., dissenting in part).

It does appear difficult to argue with complete candor that an officer can be objectively reasonable (under qualified immunity) in using a certain degree of force in a way that is objectively unreasonable (under the merits of the excessive force claim). How should this opinion be handled in litigation? The majority opinion noted that an officer could make a reasonable mistake as to what the law requires, and analyzed the officer’s conduct according to what a reasonable officer could believe. See id. at 2158, 2160. Perhaps the opinion should be read for nothing more than its face value: qualified immunity applies in excessive force cases, and, under the rules already established, if the right alleged is not clearly established (reasonable minds could differ on the lawfulness of the conduct), then qualified immunity applies. In other words, if the excessive-force law is in dispute, then an officer has qualified immunity.

However, it remains difficult to agree with the Supreme Court that the inquiry under qualified immunity into whether an objective officer reasonably believes that the conduct (the force used) was lawful (not excessive) under the circumstances is somehow different than the question under an excessive force claim as to whether the amount of force used was objectively reasonable based upon the circumstances.

¹ Since the submission of the author’s previous article, appearing in Texas Paralegal Journal, Summer 2001, Vol. 7, No. 1, at p.18, the United States Supreme Court rendered an opinion in Saucier v. Katz, 121 S.Ct. 2151 (2001). This supplement to the previous article addresses the Court’s holding.

LEGAL RESEARCH 101:  CLASS THREE
by Joan Olson, CLA, MACP President