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Friday, May 11, 2018

Painstakingly Slow Harassment Investigation Sends Case to Jury

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Keoshal Hankins worked as a sales associate a Dollar General store in Mississippi. In a sexual harassment lawsuit filed on her behalf by the Equal Employment Opportunity Commission (EEOC), Hankins claimed that she was subjected to repeated sexual harassment by her store manager, which included multiple propositions for sex and unwanted and offensive physical contact. Hankins alleged that she reported this harassment to the assistant store manager, as well as to lead sales associate who, in turn, relayed her complaints to Dollar General’s district manager and a senior human resources manager, according to a judge's order.

Dollar General’s response was “painstakingly slow”, eventually terminating the store manager approximately four months after initiating its investigation into his conduct.  By that time, Hankins had been fired, the judge’s order noted.

Dollar General sought to summarily dismiss of Hankins’ EEOC lawsuit, contending that she could not show that the manager’s sexually harassing conduct was “severe or pervasive.” In responding to Dollar General’s arguments that the alleged harassment in this case was insufficiently severe, Hankins provided the court a list of twenty-six rude, crude & profane comments, propositions, text messages, and physical touching, not appropriate to be printed in a public newspaper. A co-worker saw one of the store manager’s sexually profane text messages to Hankins, and two other workers in the same store had previously reported problems with the same store manager, the order noted.

Faced with this rather overwhelming response, the judge observed that Dollar General did not contest the factual basis for any of Hankins’ twenty-six items in its reply brief, and it simply reiterated, in a footnote, its position that the harassment allegedly suffered by Hankins was neither “severe nor pervasive.” On Tuesday, a federal judge in Oxford, Mississippi found the evidence sufficient to send Hankins to a jury.

Common Sense Counsel: The only thing worse than not reacting to complaints of workplace harassment is a painstakingly slow investigation. When you conduct your next respectful workplace training, consider these seven tips: 1) include all protected classifications; 2) provide “suitable for work” examples; 3) explain various reporting channels; 4) make sure you are using a legally compliant policy; 5) investigate promptly under the attorney client privilege; 6) take prompt remedial; and 7) take prompt corrective action. And last, a valuable lesson one of my law school professors taught me, “don’t get your honey where you get your money,” for anyone thinking that a workplace romance is a good idea.

Click Here to read the full case. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901.