Employee's Failure To Complain...
Employee's Failure To Complain Doesn't Bar Harassment Claim
By Business and Legal Reports, Inc.
If an employer has a sexual harassment complaint procedure and an employee fails to use it, can that employee still make out a good case of sexual harassment? A federal court sitting in Florida recently contemplated such a scenario.
What happened. Carla began working as an executive assistant to the Monroe County mayor in 2005, despite warnings from co-workers that he was a known womanizer with a penchant for making sexual advances. During her employment, Carla found that the mayor repeated graphic stories of his previous sexual exploits almost every day and would demean her work and embarrass her in front of other employees by repeatedly telling her, You're cute when you're upset.
She filed a sexual harassment complaint with the Equal Employment Opportunity Commission but did not use the county's sexual harassment complaint procedure because she knew that her predecessor had had similar problems and that the mayor had fired the county attorney who had become involved in her case. Carla left her job and began working for a county commissioner. There, a friend of the mayor's threatened her on two occasions, apparently because of her complaint, so the county set up a panic button and asked her to press it if the man returned. When he returned and she pressed the button, sheriffs didn't respond, so she left the job because she felt unsafe. The county terminated her for abandonment of her job. She sued for sexual harassment under state and federal law. The county asked the court to dismiss the case at an early stage.
What the court said. The county said that it had an effective harassment policy in place, which was distributed widely, and that Carla unreasonably refused to use it. The court said that the adequacy of the procedure should be measured not only by its words, but by the vigor of its implementation. The court credited Carla's argument that the policy was inadequate because it excluded elected officials and was not enforced.
Carla said that the same county attorney who worked with her predecessor said that neither a county attorney nor a county administrator could safely tell the mayor that his behavior was inappropriate and that an attempt to control his conduct would have been fruitless. The court decided that Carla produced enough evidence to raise a triable issue as to whether the county tolerated sexual harassment and denied the motion to throw out the case.
Bruno v. Monroe County, S.D. Fla., No. 07-10117-CIV-MOORE (Sept. 18, 2008).
Professional Pointer: The standard for the reasonableness of an employee's failure to use a harassment policy requires more than a showing of a general fear of retaliation unaccompanied by objective evidence to substantiate the fear.