Severe and Pervasive Sexual Harassment May Not Be Enough

Employers are allowed to raise a defense to even the most egregious employment claims. Sexual harassment is no exception. According to federal employment law, an employer can avoid liability for the sexual harassment of its employees in certain situations. How the victim employee responds to sexual harassment can mean the difference between preserving a claim for a sexually hostile environment and handing the employer a way out.

What does it take to bring a sexual harassment claim?

In employment law, sexual harassment or a hostile work environment refers to a workplace where employees are subjected to unwanted sexual behavior from co-workers. Surprisingly, sexual harassment claims have only been recognized by the courts since the late 1980s. These types of claims have always been somewhat difficult to prove, as the conduct has to reach a certain level before it becomes actionable.

Specific facts or elements must be proven in order to be successful on a sexual harassment claim against your employer. First, you must prove that you suffered "intentional, unwanted" harassment "because of your sex" and that harassment has to be "severe or pervasive." You must also prove that the harassment had a negative effect on your employment, specifically the "terms, conditions or privileges" of your job.

Possibly the most important element requires a showing that management was aware of the harassment (or should have known about it) but did nothing to stop it or prevent it from recurring. If this showing is not made, the employer may escape liability.

What is the Faragher/Ellerth Defense?

If the defendant employer can show both that it exercised reasonable care to prevent and promptly correct the sexually harassing behavior and that the alleged victim employee unreasonably failed to take advantage of any preventive or corrective opportunities, then the employer has a defense against sexual harassment in the workplace. This is true even when there is no dispute that the harassment actually occurred.

In simple terms, the employer must show that it had an effective sexual harassment policy in place, which was disseminated to its employees who received training on its requirements. Merely showing that there is a written policy, alone, does not automatically satisfy the employer's burden. The policy must be "well-known to employees, vigorously enforced, and provide alternative means of redress."

The other prong of the defense requires a showing that, when the employer became aware of the harassment, the complaint or accusations were investigated and appropriate action was taken. This is where the employee's actions are crucial. The victim of sexual harassment must make management aware of the problem by clear complaints. It is always better if the victim follows the anti-harassment policy and reports the incidents using the procedure set out in the policy. If the policy is followed and no remedial action is taken, then the employer is usually on the hook.

You have to report sexual harassment to management and allow them to opportunity to respond, or your case may be dismissed.

Examples of this important principle can be found in two recent federal district court cases. In one case, the victim employee complained but did not give the employer an opportunity to respond before she quit her job. In the other, the employee quit before she complained, then sued for constructive discharge. Neither employee was able to pursue her claim in court.

In Zuidema v. Raymond Christopher, Inc. d/b/a Cinnabon, the plaintiff was a male manager trainee who claimed he was harassed by his male trainer. Specifically, he alleged that the trainer made inappropriate verbal remarks and come-ons, saying that he liked "guys," wanted to take the trainee "out to the shed" and bend him over, and allegedly touched him inappropriately on two occasions. Two weeks later, the plaintiff gave notice that he was quitting and, at that time, reported the harassment. The harassment did not continue and nothing else occurred before his last day of employment. Although the harassment he described was sufficient to constitute sexual harassment and create a hostile work environment, the court still did not find the employer liable. Instead, the court dismissed the case because the employee gave notice and quit before the employer had an opportunity to take appropriate corrective action. Nothing else happened after he complained.

In the second case, Glemser v. Sugar Creek Realty, LLC d/b/a Pine Woods Apartments, the plaintiff attended an office party that consisted of actual or simulated sex acts and other inappropriate behavior. Her supervisor attempted to pull her pants down, and asked her to wear "boy shorts" and have her picture taken with them on. The employee quit her job the next day and later sued for harassment and constructive discharge. Once again, the court dismissed the case because the plaintiff quit her job before reporting the harassment and never returned to work. The employer never had a chance to take action.

The principle followed by the court in these two cases is that an employer is not expected to remedy harassment if the employee does not inform the company about the harassment and give them that opportunity. Also, if the victim does not take advantage of the reporting procedures that the employer has in place, there is no liability on the part of the employer because of that failure. The lesson to be learned here is, if you believe you are the victim of sexual harassment, review your employer's anti-harassment policy and follow its procedures to report the conduct. If you have more questions or need legal advice, feel free to contact us to discuss your situation.

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