You have harassment policies, right? You already know that you can’t allow sexual harassment to happen in your workplace without likely legal consequences, right? You might even have investigated allegations that one of your employees sexually harassed another employee and taken disciplinary action. OK, that’s all well and good. Your obligations to ensure a safe, discrimination and harassment-free work environment for your employees include more, though. You might be wondering, “What else could there be?”. Your obligations toward your employees also extend to protecting them against harassment by customers, contractors, vendors… You get the idea. You need to protect anyone that may have regular contact with your company, and particularly your employees –unless, of course, you don’t mind lawsuits and potentially large jury verdicts. Ask PNC Bank. Two days ago a jury awarded one of its former employees $2.4m for its failure to take any steps to address her complaints of sexual harassment by a customer. Let’s have a good look at this real, live case example. The name of the case is Scott v PNC, N.A. Here’s the nutshell version of what went down: Damara Scott worked for more than 10 years at PNC’s Glen Ridge, New Jersey branch as a Wealth Manager. Damara Scott is Black. (I promise this is relevant to the case, and you’ll see why in a moment.) Ms. Scott alleged that Patrick Pignatello, a wealthy bank customer known as “Mr. Glen Ridge”, sexually harassed her. One incident occurred in October 2013, when Ms. Scott left the bank, and Pignatello followed her to her car, verbally harassed her and then sexually grinded against her from behind. Police, as a result of this incident, charged Pignatello with assault.
Ms. Scott complained to bank officials about the assault and the bank refused to ban him from returning to the branch. There’s more though: Pignatello had assaulted and harassed other black female employees before, and it appeared the bank knew about it. Allegedly after previous incidents, the bank temporarily banned him, but, according to Scott, it wanted to continue doing business with him. Ms. Scott sued both the bank and Pignatello. She ended up settling with Pignatello’s estate. (Pignatello died about 2 months after the assault, reportedly of natural causes. No, I cannot say whether it was karma, but one can’t help wondering…)
In thc case against PNC, the jury returned a unanimous $2.4m verdict in her favor. Believe it or not, that’s not all though. Ms. Scott’s lawyer is thinking of filing a motion against PNC, for fraudulent concealment, claiming that the bank had and failed to turn over security footage of the October 2013 assault. If the court finds that PNC in fact hid evidence, PNC could be facing a new trial, resulting in even more damages to Ms. Scott. Here is PNC’s response to the verdict:
“PNC does not condone harassment of any kind,” the spokesman said. “We have a long-standing history of providing a safe workplace for our employees, and robust policies and procedures to help ensure that we continue to do so. We are disappointed by the verdict, even though the jury expressly found that this was not a case where punitive damages were appropriate. We intend to appeal based on errors made by the court.”
At first glance my thought was “Yeah, yeah that’s the usual response by an employer at the receiving end of this type of verdict”. But after thinking about it a bit, this type of response bothered me more than usual. First, the blanket statement, “PNC does not condone harassment of any kind” is clearly at odds with the evidence in the case and the jury’s findings. The evidence seems to show that in fact PNC — or at least its Glen Ridge branch– in fact has condoned harassment, and more than once. Then there’s the next sentence: “We have a long-standing history of providing a safe workplace for our employees, and robust policies and procedures to ensure that we continue to do so”. Again, the first part of this sentence is clearly not supported by evidence. What about those policies, though? Clearly these policies were useless, because either they did not even address the situation of third-party harassment, or they were not enforced — or perhaps both. (NOTE: while PNC said it has robust policies, it apparently never even offered them into evidence at trial. Hmmmm.)
That brings us to the takeaways. Here they are:
- Your obligations to provide a discrimination and harassment-free workplace include keeping your employees safe from customers and other third-parties;
- It doesn’t matter that the customer is wealthy, or what kind of relationship you have with a contractor, vendor or other third parties. If an employee complains of harassment, you are legally obligated to take the complaint seriously, investigate and take appropriate action to prevent similar recurrences– as I hope you would with any such complaint.
- If your policies do not address harassment by third-parties, this is a good time to update them.
- If you are in litigation and you have relevant evidence — whether it helps you or hurts you– produce it. Courts do not take kindly to parties that hide or destroy evidence. There are a number of cases resulting in large payouts by parties who fail to turn over relevant evidence.
Have I made my point yet? I hope so.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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