Dive Brief:

• A Washington state grocer can move forward with her hostile work environment claim as the conduct she alleged was severe and pervasive enough, the 9th U.S. Circuit Court of Appeals ruled, overturning a district court's decision (Simmons v. Safeway, Inc. dba Haggen Food and Pharmacy and Albertsons Co. Inc. No. 19-35715 (9th Cir. Aug. 5, 2020))
• Avery Simmons sued Safeway, doing business as Haggen Food and Pharmacy, alleging violations of federal and state law. Haggen did not dispute that Simmons was subjected to unwelcome conduct, including a claim that a co-worker stared at her and stood "uncomfortably" close to her during each of the 17 shifts she worked over two months. The co-worker also allegedly held her waist and followed her into "small, confined areas," the court said.
• A lower court erred when it held that no reasonable jury could conclude that the co-worker's conduct was sufficiently "severe or pervasive" to find legal liability, the appeals court concluded. The court noted that Simmons was subjected to conduct that was "more than simple teasing" or "offhand comments" and that a reasonable jury could find that the treatment was severe and pervasive enough to change the terms and conditions of her employment. In addition, the court said, there was a question regarding whether Haggen's response constituted "prompt and effective remedial action." Haggen "only counseled" the man about his staring and "reasonable minds could disagree over whether Haggen 'expresse[d] strong disapproval,'" the court said.

Dive Insight:

Employers that respond appropriately to harassment complaints generally create a strong legal defense for themselves. An Iowa federal court held last year that an employer was not liable for the harassment alleged by three truck drivers even though they had presented extensive evidence of a hostile work environment created by co-workers. The employer, the court ruled, took prompt remedial action that was sufficiently calculated to stop the harassment. When harassment was reported, the employer tried, within 24 hours, to separate the complainant from the accused and took a number of other actions to resolve the problem.

Although the U.S. Equal Employment Opportunity Commission (EEOC) reported in January that sexual harassment complaints dropped during its 2019 fiscal year, HR still should play a role in preventing claims by examining internal processes for handling harassment and discrimination complaints, experts say. 

HR can create, for example, a reporting procedure for harassment and discrimination that starts with taking all complaints seriously regardless of whether the alleged harassment is at the hands of a supervisor or co-worker, and make sure that complaints are promptly investigated, experts previously told HR Dive. In addition, complaint procedures should allow employees to report concerns to more than one person, EEOC has said.

Compliance training is also important in preventing discrimination and harassment claims. Employers should conduct harassment training at least once a year, with separate sessions for managers and employees, Robin Shea of Constangy Brooks, Smith & Prophete​ previously told HR Dive.