The Idaho Supreme Court recently found that an employer was not liable for an employee’s sexual harassment, in part, due to the employer’s well-established policies and procedures that were aimed at preventing and correcting sexual harassment.  The Court also recognized that an employer’s defense to an employee’s sexual harassment claim was equally available to an educational institution when a professor is alleged to have sexually harassed a student.  In sum, the decision solidified the need for you to reevaluate your current policy and the need to promptly and properly react to any sexual harassment claims.
 

Victoria Johnson began attending North Idaho College (NIC) in the fall semester of 2001.  One of the classes Johnson attended was an introductory computer class that was taught by Donald Friis.  Johnson ultimately withdrew from the class during the fall semester, which placed her below the threshold of credits that were needed to keep her financial aid.  During an interview with an NIC counselor to discuss educational options in the future, Johnson told the counselor that Friis made her feel uncomfortable. 

In preparation for the Spring 2004 semester, Johnson was informed by NIC that she still needed to take an introductory computer course and that Friis would be the professor.  Johnson enrolled.  Shortly thereafter, Johnson told a class teaching assistant, who Johnson had hired as a private tutor, that Friis made her feel uncomfortable.  Following the mid-term, Johnson quit turning in assignments and going to class altogether.  At the request of Johnson, Friis gave her a grade of “I” for incomplete, which was later changed to an “F” per NIC policy because Johnson did not complete the required coursework within a specified period of time. 

Johnson again met with an NIC counselor prior to the beginning of the Spring 2005 semester.  During their discussion, the counselor told Johnson that her grade of “I” was changed to an “F.”  Johnson then told the counselor that Friis sexually harassed her and that she believed the grade change was in retaliation.  As per NIC policy, the counselor told Johnson that she could file a formal complaint with NIC.  In February 2005, Johnson filed her complaint with NIC alleging that Friis was overly nice, flirtatious, asked her out on dates, left inappropriate messages, and inappropriately touched her.  Thereafter, Friis was informed of Johnson’s allegations and he was given a chance to respond.  NIC’s Sexual Harassment Advisory Committee was also summoned to perform an investigation into Johnson’s allegations.  Although the Committee determined that Johnson’s grade change was not in retaliation, it determined that Friis’s conduct amounted to a violation of NIC’s sexual harassment policy.  Friis subsequently resigned.  

 On September 26, 2006, Johnson filed a complaint in state district court alleging numerous causes of action, including sexual harassment and gender discrimination in violation of the Idaho Human Rights Act (IHRA).  After a lengthy - and presumably costly - procedural battle, the district court ruled in favor of NIC because, in part, its sexual harassment policies and procedures were established and utilized when called upon.     

In a matter of first impression in the State of Idaho, the Idaho Supreme Court recognized the Faragher/Ellerth affirmative defense, which was first articulated by the United States Supreme Court in 1998.  The defense is available to employers who are subject to liability to a victimized employee that is sexually harassed by a supervisor who has immediate authority over the employee.  Essentially, the defense requires three elements to be established: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise; and (3) no tangible employment action was taken against the plaintiff employee – i.e., discharge, demotion, or undesirable reassignment.  The Idaho Supreme Court also noted that an employer’s stated anti-harassment policy - suitable to employment circumstances - would be appropriately addressed in analyzing the first element, and that proof that the victimized employee failed to fulfill his or her obligation to use policy procedures to avoid harm would normally satisfy the second element, although other proof demonstrating reasonable care to avoid harm could be sufficient.  

The “Employer’s Exercise of Reasonable Care” Element                     

In determining that NIC had satisfied the first element of the Faragher/Ellerth defense, the Court weighed heavily the fact that NIC had taken reasonable care to prevent harassment by implementing anti-harassment policy and procedures.  The Court noted that NIC had provided sexual harassment training to all faculty and staff, and NIC had included NIC’s policy and procedures in its student handbooks.  Further, the Court highlighted NIC’s prompt and appropriate action when it was formally informed of Friis’s conduct.  First, NIC met with Johnson and assembled the Sexual Harassment Advisory Committee to investigate Johnson’s allegations.  Second, after the evidence was reviewed and interviews conducted, the Committee rendered a nine-page decision of its findings recommending that Friss be sanctioned.  In all, NIC argued that its policies, procedures, and the corrective action that it took demonstrated that sexual-harassment allegations were taken very seriously. 

The Court rejected Johnson’s argument that NIC should have been on notice of Friss’s behavior due to previous incidents that involved other students – e.g., a complaint that Friss invaded the personal space of another – because such complaint did not amount to an incident of sexual harassment and NIC had warned and required Friss to take sensitivity training.  Further, the Court found that NIC had an established sexual harassment policy in place and had acted quickly in response to the complaints lodged against Friss.  Based on the foregoing, the Court found that NIC had satisfied the first element of the Faragher/Ellerth defense. 

The “Employee’s Unreasonable Failure to Act” Element 

Regarding the second element, the Court made a number of observations.  To begin with, Johnson had waited several years after the first incident before filing a formal complaint with NIC.  In response, Johnson argued that her delay should be excused due to a fear of retaliation.  The Court rejected Johnson’s argument because she had conceded that Friss had never made specific threats.  Further, the Court found that Johnson’s delay in reporting could not be excused by a generalized fear of retaliation; rather, there had to be a substantial and specific threat of retaliation.  Because Friss did not make specific threats and because Johnson had waited an extended period of time before filing her formal complaint, the Court found that Johnson’s reporting delay was unreasonable.  

The “No Tangible Employment Action” Element 

The Faragher/Ellerth defense would not have been available if there had been adverse action taken against Johnson – i.e., discharge, demotion, or undesirable reassignment.  Johnson argued, in part, that her grade change from an “I” to “F” was an adverse action taken and therefore NIC’s defense was not established.  The Court rejected Johnson’s argument because Friss should have given Johnson an “F” to begin with, and because Johnson’s grade was changed as a result of NIC’s incomplete grade policy.  Further, the Court noted that Johnson filed her formal complaint only when she mistakenly believed that Friss had changed her grade.  Based on the above, the Court found that there had been no adverse action taken against Johnson and NIC had established the Faragher/Ellerth defense. 

            What Does All This Mean for You? 

The Johnson case is important to Idaho employers for a number of reasons.  To begin with, the case signifies the need for you to review your sexual harassment policy and procedures to make sure they are up to date.  Your policy should define what constitutes “harassment,” and generalized examples should be provided.  You should also identify the individuals and the conduct that is covered.  Reoccurring training should be provided to all of your employees. Moreover, your policy needs to identify and define the procedures for filing a complaint and what steps you will take thereafter.  If it is determined that sexual harassment occurred, then corrective action must be taken. As exemplified by the Johnson case, having well-established and well-defined policies and procedures can help you limit your legal liability.  If you have questions regarding your policy or would like assistance drafting a policy, you are encouraged to contact legal counsel. 

 

 

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