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HOSTILE WORK ENVIRONMENT: Supervisor's actions didn't amount to severe and pervasive harassment

02.01.2010
Kentucky Employment Law Letter, Vol. 20, N0. 5
 
February 2010
 

The Kentucky Court of Appeals recently addressed the issue of whether a supervisor’s offensive comments to an employee over a two-week period created a hostile work environment under Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act (KCRA). The court also examined whether the employee’s firing shortly after she complained about sexual harassment constituted retaliation. The court held that the supervisor’s comments weren’t severe and pervasive enough to create a hostile work environment and the employee was terminated for a legitimate nondiscriminatory reason. Let’s take a closer look at the case. 

Facts 

Terra Becker was hired by Campbellsville Memorial Gardens in April 2007 to provide office assistance and make telemarketing phone calls to potential customers. In October, Charles Gernheuser was hired as the sales manager at Memorial Gardens. 

According to the evidence, during a two-week period, Gernheuser made unwanted sexual comments to Becker and other female employees. For instance, he told Becker that it would be nice if she was wearing a bikini, that she was beautiful, that he wished he was 
younger and she was older, and that she had a “nice ass.” He also touched her back near her shoulder. However, he never explicitly propositioned her, requested sexual favors, asked her out, or threatened her. 

On November 2, 11 days after Gernheuser started working in the Campbellsville office, Becker reported his conduct to the administrator, Shellie Mattingly, who assured her that she would immediately address the situation. Becker also described an incident involving Gernheuser’s use of profanity toward the female sales counselors. Mattingly informed management about the incident and Gernheuser’s comments to Becker. 

Three days later, Gernheuser was demoted and transferred to another location.  Mark Goodsir replaced him as the new sales manager. He met with Becker and expressed sympathy about her dealings with Gernheuser. 

Despite his departure, Gernheuser called Becker twice. At some point, he called the office while Goodsir was present, and the new sales manager instructed him not to speak with any of the staff again. Thereafter, Gernheuser stopped calling. 

On November 12, Goodsir stayed late to observe Becker’s work because the sales counselors had complained to him about her performance in generating sales appointments. He concluded that she made too many personal calls and not enough sales calls. He then decided that the office needed a full-time telemarketer and discharged Becker on November 13. 

In January 2008, Becker filed a lawsuit alleging hostile work environment, sexual harassment, and retaliation. Her claims were dismissed without a trial based on evidence presented to the court. She appealed that decision to the Kentucky Court of Appeals. 

Court’s decision 

The court of appeals found that Becker’s hostile work environment claim failed because her exposure to Gernheuser’s inappropriate statements and conduct was limited. She had interacted with him in person no more than six times. No inappropriate touching occurred, and no overt threats of violence or demands for sexual favors were made. The inappropriate behavior identified by Becker, when viewed in its totality, simply didn’t rise to the required level, and Gernheuser’s actions didn’t constitute severe and pervasive harassment. 

The court also found that the company wasn’t liable for Gernheuser’s inappropriate conduct because it had implemented a sexual harassment policy that outlined a specific complaint procedure. That procedure directed employees to notify either a supervisor, a manager, or the company president and to call HR to report sexual harassment. Becker didn’t comply with the policy, and the company acted immediately to remedy the situation once it was reported. It removed Gernheuser from the Campbellsville location on the day it became aware of his inappropriate conduct. 

Furthermore, the court found that Becker wasn’t subjected to retaliation because there was no evidence to suggest that the company’s legitimate nondiscriminatory reason for discharging her was mere pretext, or false. Instead, the record established that the office was in need of a full-time telemarketer. Also, other female sales counselors had complained about Gernheuser’s conduct and weren’t terminated or disciplined. Becker v. Saber Mgmt.-Ky., LLC, No. 2009-CA-000089-MR, 2009 WL 4060859 (Ky. Ct. App., 2009). 

Bottom line 

This case reaffirms the importance of having a written harassment policy in place and acting promptly to remedy misconduct after it’s reported. It also shows that you can protect your company against liability by basing your termination decisions on legitimate nondiscriminatory reasons.


Find out more about effective responses to sexual harassment complaints in HR Quick List, 3rd Edition. This handbook guides you to a fast, confident, legally compliant decision whenever you tackle any of 61 common HR dilemmas. For more information, call customer service at (800) 274-6774.

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2010 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

 
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