|Is Zero Tolerance Enough?
A recently filed lawsuit against an auto dealership accused a
sales manager of sexual harassment and sexual battery against
Copyright© 2008-2011 Automotive Dealers Network. All rights reserved.
|Jim Radogna is the President of Dealer Compliance
Consultants, Inc., a San Diego, California training and
consulting firm. He has more than 20 years of
broad-based management, training and consulting
experience in the automotive industry.
According to the complaint, the employee was harassed continuously over a
ten day period and ultimately quit due to the alleged behavior. The complaint
further stated that the dealership should have known what was going on and tried
to correct it.
The dealership responded that the claims have no merit; that it has a zero-
tolerance harassment policy; and that human resources was not contacted about
the situation, as its employee handbook specifies.
I have no idea what the true merits of this particular case are, but it brings to mind
what an uphill battle fighting these claims can be.
In some cases, employers may be considered to be “strictly liable” for sexual
harassment, meaning that the employer is liable for harassment by an employee
or other individual even if the employer did not know about the harassment or
acted immediately to stop it. Fortunately, the Supreme Court has recognized a
viable defense to this liability. If an employer can prove that it exercised
reasonable care to prevent and promptly correct any sexually harassing behavior
and the complaining employee unreasonably failed to take advantage of any
preventative or corrective opportunities the employer provided or to otherwise
avoid harm, the employer may avoid liability for unlawful harassment. Note
however, where a supervisor’s harassment includes a tangible employment action
(for example, firing the individual); this defense may not be used. An employer is
always liable for harassment by a supervisor on a prohibited basis that culminates
in a tangible employment action. The Supreme Court recognized that this result is
appropriate because an employer acts through its supervisors, and a supervisor's
undertaking of a tangible employment action constitutes an act of the employer.
The result in the this case may well come down to whether or not the court believes that the employer exercised
“reasonable care” and that the employee “unreasonably” failed to take advantage of opportunities that the employer
Most dealerships have an anti-harassment policy in place that they have all of their employees sign. That’s a
great first step, but the questions remain: Have the employees actually read the policy and do they really understand
it? Are they really aware of the procedures set forth in the policy to protect them from harassment?
If employees are trained on exactly what to do in the case of harassment (like who to report it to, and so forth) and
fail to do so, the dealer will likely be in a better position to defend itself against a claim. On the other hand, if victims
of harassment are uncertain about whom to report the harassment to within the company or worse yet, their claims
are not taken seriously; they may feel their only recourse is to contact an attorney. That’s when it gets ugly.
The following procedures can be helpful in demonstrating that an employer has taken
reasonable care in preventing or mitigating harassment:
Preparing and adopting an anti-harassment policy and communicating the anti-harassment policies to all
Clearly communicating that harassment will not be tolerated and clearly explaining prohibited conduct.
Creating a sexual harassment complaint procedure and explaining the employee’s obligation to report any
conduct that may be viewed as harassing.
Providing every employee with a copy of the harassment policy and complaint procedure, and redistributing
it periodically. The policy and complaint procedure should be written in a way that will be understood by all
employees in the employer's workforce.
Making the anti-harassment policy easily accessible via the company intranet, posters, employee
handbooks and including it in the new-hire process.
Providing sexual harassment training to all employees to ensure that they understand their rights and
Taking any claim seriously and investigating it.
Taking prompt and appropriate action.
Unfortunately, being a traditionally male-dominated industry, harassment claims against auto dealerships are not an
uncommon occurrence. Having a policy in place and hanging posters may not be enough to adequately protect