Employer’s Super Anti-Harassment Policy May Increase Its Liability

08 December 2014 Labor & Employment Law Perspectives Blog

A federal court in Connecticut recently concluded that a fired employee could have a valid disability harassment claim based on statements prohibiting all harassment contained in the employer’s personnel manual. The company manual did not have standard “this manual does not create contract rights” language and stated that it prohibited any inappropriate workplace conduct, “not only illegal harassment.” Based on the absence of contract disclaimer language and other language in the handbook, the court held that the employer’s “super anti-harassment” policy could create an enforceable contract right to be protected from all harassment. Thus, even though the fired employee’s statutory disability harassment claim failed because he waited too long to bring it, his breach of contract claim survived. Ouch.

Here is what happened. The employee worked for the employer for ten years. He suffered from Tourette’s Syndrome and was mocked and harassed, often and severely, by a co-worker for years. He requested and was granted a transfer to a different department, but still believed he was mistreated and finally filed an internal complaint. The employer investigated and agreed the employee had been ridiculed, humiliated, and abused because of his Tourette’s condition based on the conduct that had occurred years before. However, the employee did not believe that the company took appropriate corrective action. He filed a disability discrimination complaint with the Connecticut human rights commission and then a civil suit, asserting several claims, including under the ADA and state human rights law for hostile work environment and for breach of contract based on the personnel manual. The employer sought to have the case thrown out, including by asserting that the personnel manual did not create a contract. Wrong.

While the Court dismissed the statutory harassment claim because the employee filed his administrative claim too late it ruled differently on the contract claim. The employer’s personnel manual included a number of statements indicating that the company held its employees to standards higher than the law required. For example, the manual — which the company called an Employment Agreement —stated that corrective action would be taken regardless of whether the complained-of conduct violated the law. The company also prohibited conduct that would not be considered harassment “in a legal sense.”

The Court favorably commented that the employer’s policy was very “progressive” and referred to it as a “super anti-harassment” policy. However, the personnel manual did not contain standard disclaimer language that it does not create legally enforceable protections. Absent that disclaimer language, the court held that the anti-harassment policy could create a contract right for employees who relied on it. The court then applied the Connecticut six-year statute of limitations and essentially held that the former employee could sue for the several years of abuse and ridicule that the company’s internal investigation confirmed had occurred. Ouch again.

What is the takeaway here? All companies want to be perceived as model employers recognized for their efforts to create and maintain a workplace that will attract and retain the best employees.  Many companies have policy language stating, in effect, “we do more for our employees than the minimum required by law.” However, you must include contract disclaimer language so that your “super” policies do not create “super” employment practices risk.

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