July 31, 2015
Secret Recordings in Sexual Harassment Cases - Lesson from Tennessee Court of Appeals
The Tennessee Court of Appeals has affirmed the trial court's award of summary judgment in favor on an employer in a case involving claims of hostile work environment sexual harassment, retaliation, and other related claims. The case, decided July 30, 2015, is Bazemore v. Performance Food Group, Inc., and it arose from Chattanooga, Tennessee.
More importantly, the Court of Appeals implicitly has a word of caution for employees who have made secret recordings of harassing or unlawful conduct by a co-worker or supervisor - if you have that card, you need to play it early; or, in other words, disclose the existence of the recordings to the employer within time for them to be utilized in the employer's investigation, analysis and response.
In this case, the plaintiff employee had several secret recordings of two of her supervisors making improper remarks which could be considered sexual harassment, and the remarks of one were specifically directed to her. The employee made complaints to the employer, which investigated the allegations based upon the information known to it - but the employee never disclosed that she had recordings corroborating the events until she resigned. Because of this, the employer was left with a "he said, she said" scenario, with no corroborating evidence. The employer did take steps to prevent contact between the employee and the offending co-worker, and it reprimanded him, but this did not satisfy the employee. (In fact, once the recordings were revealed, his employment was terminated).
The trial court awarded summary judgment, and the Court of appeals affirmed, because the employer was deemed to have acted reasonably, and it "could not be faulted for never analyzing evidence which was not provided to it." The employer also had in place appropriate policies, procedures, training, etc. In sum, it was found to have acted reasonably.
This case provides a strong affirmation to employers regarding the importance of good, effective policies and procedures, as well as prompt, effective remedial action after an investigation. However, there is also a lesson for the employee who has "smoking gun" evidence like recordings - in situations like this, you had better disclose the evidence so as to permit the employer to act appropriately, rather than holding onto it as some sort of "insurance policy" or "secret weapon" you intend to use later.