In an encouraging move for employers, the United States Court of Appeals for the Fifth Circuit recently held in Indest v. Freeman Decorating, Inc. that an employer who made a "prompt remedial response" pursuant to an employee's complaint of sexual harassment was relieved of Title VII liability regardless of whether the harasser's actions were characterized as "quid pro quo" or "hostile work environment." The plaintiff in Indest was an exhibitor services representative for the defendant company who provided services to convention sponsors and exhibitors.

In September of 1993, Indest was assigned to a Freeman vice president for a particular convention. Over the course of the convention, the vice president made "crude sexual comments and sexual gestures while she was alone and in the presence of her immediate supervisor." Indest recalled a particular incident wherein the vice president profanely berated her in front of other Freeman employees, and made other various crude sexual remarks to her which ultimately made her cry.

Indest complained to her managers who subsequently placed her in contact with Freeman's corporate human resources department, who, in turn, investigated Indest's complaint, interviewed witnesses, Indest's supervisors and the alleged harasser. As a result of the investigation, the harasser was given a verbal and written reprimand, suspended for seven (7) days without pay, and prohibited from attending an annual management and sales meeting. Indest was assured that she would never again have to work for the harasser, guaranteed that her complaint would not impact her career path, and offered counseling. Indest continued to receive pay increases and was not terminated from her employment. The United States District Court for the Eastern District of Louisiana dismissed Indest's complaint because it found that the company took prompt remedial action upon being notified of the harasser's actions and was therefore, it held, relieved of Title VII liability.

The Equal Employment Opportunity Commission joined in Indest's appeal of the district court decision. In affirming the district court decision, the court of appeals analyzed the recent Supreme Court trilogy of sexual harassment cases decided in 1998, and distinguished their vicarious liability analyses on the grounds that all of the Supreme Court cases dealt with factual scenarios where the harasser's behavior was both severe and pervasive. By contrast, the court reasoned, Indest's complaints concerned a short time frame and were promptly addressed by management upon discovery. The court noted, however that its decision was consistent with the principals and spirit of the Supreme Court trilogy in relieving from liability employers who promptly react to an employee's complaint of sexual harassment and adequately remedy the situation to avoid the creation of a hostile work environment.

Recent litigation demands that every employer have in place anti-harassment policies and complaint procedures. If you should require assistance in reviewing or creating such policies, please contact us by telephone or e-mail as set forth below.

The information provided herein is for general guidance on matters of interest only. While every effort has been made to ensure the information provided herein is accurate and timely, no decision should be made or action taken on the basis of information without first consulting an Epstein Becker & Green professional.

Elliot Mandel
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