Employer Saves $3.5 Million With Sensitivity Training

By: Washington State Employment Law Lawyer Elizabeth Van Moppes

An employer in Puerto Rico recently learned the hard way that sensitivity training on their anti-discrimination and anti-retaliation policies was well worth their time. On January 7, 2015, the U.S. District Court for the District of Puerto Rico found that the defendant employer had demonstrated that it had made good faith efforts to implement its anti discrimination and anti retaliation policies and issued an opinion overturning a jury’s $3.5 million punitive damages award for retaliation claims brought under Title VII and Puerto Rico law. Wirshing v. Banco Santander de Puerto Rico, et al., No. 3:11-cv-02073-GAG (D.P.R. Jan. 7, 2015).

Plaintiff Rose Marie Wirshing worked as a Product Manager at Banco Santander beginning in 2007. In her lawsuit, she claimed that her direct supervisor sexually harassed her and that this harassment continued despite the complaints she made to Human Resources. Wirshing also claimed she was subjected to a campaign of retaliation for making a complaint, including threats that she would lose her job. A jury found in favor of Wirshing, and awarded her $351,018.34 in compensatory damages and $3.5 million in punitive damages.

On defendant’s post-trial motion, the court upheld the compensatory damages award but completely vacated the punitive damages award. The court held that punitive damages were not warranted because defendant had exercised good faith efforts to implement anti discrimination and anti retaliation policies. Although the jury had found that defendant’s policies were ineffective, the court noted that the “ineffectiveness of Defendant’s policy . . . cannot alone demonstrate a lack of good faith justifying an award of punitive damages.”

As evidence of defendant’s good faith efforts, the court pointed out that: (1) defendant’s policies were given to new employees, (2) the policies were republished annually, (3) they were emphasized through annual trainings, and (4) that there was evidence of the company’s procedures for handling complaints and its thorough investigations of plaintiff’s complaints. According to the court, defendant “did more than merely publish an official policy and passively implement such in an attempt to comply with Title VII’s requirements.”

The Wirshing decision reminds employers of the importance of having anti discrimination and anti retaliation policies in place. But the case emphasizes the fact that policies alone are not enough. The company was saved from the punitive damages award because it also provided employees with regular training on the policies and procedures. These, combined with a proper investigation into the complaint, saved this employer $3.5 million.

Beresford Booth PLLC (425.776.4100), www.beresfordlaw.com

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