Adopting an antiharassment policy and training employees on it was a key factor in a restaurant chain's successful defense against a hostile work environment claim.

What happened. In January 2003, "Kayla" started working as an assistant manager at a West Des Moines, Iowa, restaurant owned by Famous Dave's of America, Inc. During her first month of employment, she trained in Lincoln, Nebraska, with Chuck LeCorgne, general manager of the Lincoln restaurant.

Kayla's immediate supervisor in West Des Moines was the restaurant's general manager, who allegedly began making sexual advances and inappropriate comments to her almost immediately after she started at that restaurant in mid-February 2003. He winked at her, blew her kisses, and pulled a badge on the front of her belt at least daily. He also slapped her on the buttocks.

LeCorgne visited the West Des Moines restaurant on April 2, and Kayla arranged to speak with him at another location later that day. She told LeCorgne about the general manager's behavior. LeCorgne suggested that Kayla share her concerns with the general manager or his immediate supervisor and told her about the company's employee hot line.

Five days later, on April 7, Kayla left a message on the hot line. She also reported her concerns to a comanager that day. The comanager contacted someone in HR, who immediately called Kayla to inquire about the situation. Kayla later claimed that the HR rep characterized the general manager's actions as "blatant sexual harassment."

After traveling to West Des Moines to investigate, the HR rep told Kayla that the general manager had admitted some of the allegations, and she repeated an earlier request for the three of them to meet together. Kayla said she was not sure if she still wanted to work for the company. The HR rep offered to transfer her to another Famous Dave's restaurant 5 miles away. Kayla allegedly promised to call the HR rep the next day, but didn't.

The HR rep made several attempts to contact Kayla that day, but she did not answer her phone or return the calls. Instead, her lawyer called the HR director to say that Kayla was resigning, and she e-mailed a resignation letter to the director.

The HR director sent Kayla an e-mail inviting her back to the company, and within days, her alleged harasser sent her a letter of apology. In another letter, the HR director extended the invitation again, explained that the general manager had been instructed to refrain from any inappropriate behavior at work, and stated that the company could not disclose his specific discipline.

Kayla filed suit against Famous Dave's and the general manager, alleging that they had subjected her to a hostile work environment and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 and Iowa state law. A district court ruled in favor of the company, and Kayla filed an appeal with the U.S. Court of Appeals for the 8th Circuit, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

What the court said. The appeals court affirmed the district court's decision. Although Kayla demonstrated that she was subjected to a hostile work environment based on supervisor sexual harassment, Famous Dave's was not liable because it established an "affirmative defense."

To establish an affirmative defense, an employer must show that: (1) it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm," the court said.

Famous Dave's met the first element, because it had an antiharassment policy in place, including a nonretaliation provision and a flexible reporting procedure. "Most importantly," the court said, Kayla "received training specifically about the policy."

Once Kayla called the hot line and invoked the policy, the company immediately responded to her concerns, the court noted. In addition, the HR rep investigated the complaint and offered to work out a new schedule and relocate Kayla.

Famous Dave's also met the second element of the affirmative defense, the court said, noting that Kayla unreasonably failed to take advantage of the HR rep's assistance.

Kayla's retaliation claim failed because she did not show that she was constructively discharged, according to the court. Brenneman v. Famous Dave's of America, Inc., U.S. Court of Appeals for the 8th Circuit, No. 06-1851 (2007).

Point to remember: During supervisor training, provide examples of inappropriate comments and behavior, and use case studies to demonstrate where supervisors in other companies erred and what supervisors can do to avoid similar situations.