Sexual Harassment-Speak Now or Forever Lose your Claim

The law of sexual harassment requires employees who believe they have been harassed to follow their employers’ anti-harassment procedures-which typically require employees to complain to a high company official in order to allow the company to remedy the situation-before they may file a sexual harassment lawsuit. A recent decision from the Eighth Circuit Court of Appeals, Adams v. O’Reilly Automotive, Inc., illustrates the perils of failing to file a timely internal complaint of sexual harassment.

In Adams, a female employee claimed that her supervisor had sexually harassed her for more than two and a half years. However she never reported the harassment to company officials, and when she did finally make a complaint through the company’s sexual harassment telephone hotline, her supervisor was almost immediately discharged.

The employee subsequently filed a sexual harassment lawsuit, but the employer moved for summary judgment. The company argued that the employee never filed an internal sexual harassment complaint despite the fact that the company had adopted and promulgated a zero-tolerance, multi-channel complaint procedure for sexual harassment claims, which the employee admitted she was aware of.

In response, the employee argued that despite the existence of the company’s written anti-harassment policy, in practice, the policy was not effectively enforced and thus the employer should not be permitted to rely upon it. In support of this contention, the employee first argued that because the company typically required allegations of sexual harassment to be supported by corroborating evidence before taking action against an alleged harasser, this rendered the policy ineffective. The court rejected this argument, finding that even if the company required corroborating evidence of harassment, this does not render the company’s policy an ineffective one, as requiring other evidence of discrimination beyond that of the victim is a reasonable investigatory approach and did not, in itself, vitiate the reasonableness of the police. Indeed, the court on this point cited with approval a decision from the Eleventh Circuit (the federal appeals court with direct authority over the federal district courts of Georgia, Alabama and Florida), Baldwin v. Blue Cross/Blue Shield of Alabama, in which the court concluded that “there is no requirement that the employer credit uncorroborated statements the complainant makes if they are disputed by the alleged harasser.”

The employee also argued that despite the existence of the anti-harassment policy, the company had a history of ignoring sexual harassment complaints and failing to discipline harassers. The court did observe that despite even the strongest written anti-harassment policy, if the employer routinely ignores it, then no matter how good it is in theory, the company cannot rely on it to assert a defense to a sexual harassment claim. On this point, the court found that although the employee pointed to five other employees whose sexual harassment claims were not addressed by the company, only one other complaint had not been adequately addressed-in the other instances advanced by the employee, the harassed employee either did not make a timely complaint or the employee dropped her claim after making an initial complaint.

The court also rejected the employee’s argument that the company should have or must have had notice of the harassment due to the fact that it occurred over a two and a half year period. The court also rejected this argument, concluding (again following an Eleventh Circuit precedent) that because the company had an effective policy that advised employees of what to do to make a sexual harassment complaint, the company could not be charged with constructive knowledge of the employee’s claim since the employee did nothing to bring it to the company’s attention.

The court then addressed the issue of the employee’s failure to file an internal complaint for more than two years. The court concluded that because the employee failed to make a complaint for more than two years, and that as soon as she did the harasser was discharged, the employee acted unreasonably in delaying her complaint. The employee argued on this point that she was imply waiting to locate a corroborating witness before going to the company to complain. But the court rejected this argument, concluding that although it could understand why an employee might wait to gather other evidence before coming forward, this does not in itself excuse the failure to come forward to report harassment.

Accordingly, the court concluded that the employer had an effective sexual-harassment complaint procedure, and that the employer’s failure to take advantage of it barred her claim for sexual harassment.

Although this decision is obviously not an employee friendly one, it drives home the absolute necessity for employees to speak up as soon as possible and follow their employers’ harassment procedures if they believe they have been harassed in the workplace.