In a sexual harassment lawsuit, an important legal question is whether the employee has complained to the company about the harassment. But what, exactly, counts as an internal complaint under the law? The answer, which is discussed in detail below, depends on who the harasser is and what internal complaints policies the employer has in place.
The focus of this article is on an employer’s affirmative defense. sexual harassment case Where a supervisor harasses an employee but no coercive action is taken against the employee/victim. Under this scenario, the employer will be liable for harassment unless it is proved Both that (1) the employer took reasonable care to prevent and promptly correct any harassment; and (2) the employee improperly failed to use any preventive or corrective opportunities offered by the employer. see, for example, City of Faragher vs Boca Raton, 524 US 775, 807 (1998).
How to Prove a Case of Sexual Harassment
under Title VII or the Civil Rights Act of 1964 (Title VII),”
Defense of employer in case of sexual harassment involving a supervisor
Depending on the type of sexual harassment case, the employer may be able to avoid liability by using an affirmative defense, assuming that the employee can meet these preliminary/prima facie elements listed above. As a preliminary matter, in some cases the employer is automatically liable for harassment committed by a supervisor that results in a tangible employment actionLike termination, deprecation, etc. see, for example, Burlington Indus., Inc. vs allerth, 524 US 742, 765 (1998); Faragher, 524 US at 807; Ray909 at F.3d 667.
But if the supervisor’s harassment did not result in any substantive employment action against the employee, the employer may attempt to prove the following affirmative defense (often called faragher/allerth Defense):
- “(a) that the employer exercised reasonable care to prevent and promptly cure any [ ] disturbing behavior, and
- (b) that the plaintiff employee has unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid damages otherwise.” Faragher, at 524 US 807.
Note that the company must prove both elements of the defense.
Also, if harassment is committed by a coworker as opposed to a supervisor, the onus is on the employee to prove that the employer negligently failed to address and correct the harassment promptly. The legal implications of this scenario will be covered in a forthcoming article.
What counts as “failed unreasonably”[ing] To take advantage of an employer’s anti-harassment policy?
How soon should an employee file a complaint of internal sexual harassment?
A hotly contested legal element to an employer’s affirmative defense is whether the employee has made a timely complaint to the employer about harassment. Employers will often argue that if an employee does not report the harassment immediately, the employer should not be held liable. This is a fact-intensive investigation and it is not surprising that courts have ruled that what may be considered a “timely” complaint varies. Compare Craig vs. M&O Agencies, Inc., 496 with F.3D 1047, 1075-58 (9th Circle 2007) (About three weeks delay in reporting is justified) Walton vs Johnson & Johnson Serv., Inc., 347 F.3D 1272, 1290 (11th Circle 2003) (Delay of about three months in reporting is unreasonable).
While it is generally true that, the sooner an employee complains, the better their legal reasoning will be, good reasons exist as to why an employee cannot report, or will delay reporting, sexual harassment. For example, if the employee reasonably believes that he or she will face retaliation for doing so. See, for example, Carroll vs. ATA Retail Serv., Inc.2016 WL 8417377, at *9 (Nd Ga. Jan 8, 2016).
Does an employee fearing retaliation still have to complain about sexual harassment internally?
In particular, discussing many of the matters of what constitutes “reasonable belief” about potential retaliation if an employee reports harassment is devoid of real-life considerations and has a decidedly pro-employer slant. . For example, many courts have found that reporting sexual harassment leads to fear of job loss. No Pardon an employee from reporting harassment. See, for example, Swindle vs. Jefferson CNT. commune, 593 Fed. Approx 919, 924-25 (11th Circle 2014). Consider a single mother who is a victim of sexual harassment and believes that her company (perhaps at the behest of her harassing supervisor) will fire her if she complains about the harassment. According to some courts, if she does not risk her livelihood by making a complaint, she will lose her sexual harassment case. If, however, an employer takes the extreme step of telling an employee that reporting the harassment invites retaliation, the employee may appropriately stop complaining. See Dinkins vs. Charoen Pokefund USA, Inc.133 F.Sup.2D 1237, 1254 (Md Al. 2001).
Should the employee make repeated complaints about sexual harassment?
What if an employee, or their co-worker, has previously complained about harassment, but the employer did nothing in response? Some courts have said it can exempt an employee from reporting harassment or making multiple complaints. For example, where supervisors “laughed out” complaints about harassment, plaintiffs feared losing their jobs in retaliation for their complaints, and the situation did not improve after the complaint was filed, the court asked the jury to decide. whether the complaints, or lack thereof, were justified. View Crawford vs. Newport News Industrial Corp.No. 4:14-CV-130, 2018 at WL 4561671, *19 (ed va. March 2, 2018). But other courts have asked an employee to repeatedly complain about sexual harassment, even if the employer failed to address the harassment after the initial complaint. See Lauderdale v. Texas Department of Criminal Justice, Institutional Div., 512 f.3d 157, 165 (5th Circle 2007).
Should a sexual harassment complaint be written?
While written internal complaints about sexual harassment may be better than a verbal complaint, a verbal complaint is sufficient. See, for example, Jones v. District of Columbia, 646 F.Sup.2D 42, 49 (DDC 2009). The key point is that the complaint, in whatever form, informs the employer of sexual harassment.
Considering whether an employee “unreasonably fails” to take advantage of an employer’s sexual harassment policy is fact-intensive, there is no “one-size-fits-all” answer. But the following factors will often help an employee demonstrate that they have complained sufficiently about the harassment they experienced to make it harder for the employer to win their affirmative defense.
- complain if possible in writing,
- submit complaint as soon as possible after harassment, If this is not possible, give specific reasons why the complaint was not made earlier (for example, the employee was threatened with retaliation if the report was filed).
- If the company has an anti-harassment policy, and most employers do, Follow the reporting mechanism in company policy if possible.
- If the harassment doesn’t stop with the first complaint, make several complaints, if possible.
Credit: www.forbes.com /