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HR and Tax Newsletter-November 2003

Ortho-McNeil Pharmaceutical Inc. was entitled to an affirmative defense, the Eleventh Circuit found, concluding that the company had distributed an anti-harassment policy and acted promptly when a salesperson reported supervisory sexual harassment by her supervisor, and that the salesperson acted unreasonably in delaying in reporting the alleged incidents. (Walton v. Johnson & Johnson Services Inc.).

Lucianne Walton first reported incidents of sexual harassment that allegedly began in June 1999 to the company's human resources department on September 3, 1999. On Sept. 10, a company investigator interviewed Walton. Three days later, the investigative staff met with George Mykytiuk, the alleged harasser. Following the meeting, he was suspended and remained suspended until he was fired on December 31. Ortho had an anti-harassment policy that it had distributed to Walton. The policy properly provided for an alternative channel for making complaints other than the harassing supervisor. Although Walton claimed the policy did not name a specific person to whom a report should be made, the court concluded that the policy manual sufficiently informed harassment victims that all complaints would be handled by the human resources department. The company complied with the preventive requirement for an affirmative defense, the court stated. Ortho had acted promptly to correct the harassment. Walton claimed she told the supervisor his advances were unwelcome, that she filed a complaint five days after the last harassing act, and that any delay was reasonable. She claimed she delayed because she feared for her job and for a promotion she wanted, and that she was intimidated by a gun Mykytiuk showed her in his apartment. Ortho sales personnel had no office space and worked out of their homes.

The court concluded that Walton could have avoided most, if not all, of the actionable harassment by reporting Mykytiuk's behavior to Ortho officials. By failing to do so, Walton did not give Ortho an opportunity to address the situation and prevent further harm from occurring.