By Eric B. Meyer
I can actually feel the daggers that some of you are staring into me.
So, please allow me to explain.
How to demonstrate sexual harassment
When an employee sues for sexual harassment, he/she must show four things:
- He or she was subjected to conduct of a sexual nature;
- The conduct was unwelcome;
- The conduct was severe or pervasive; and,
- Objectively and subjectively altered the conditions of employment to create a discriminatory abusive working environment.
Often, even if the employee meets this burden, the employer can still prevail if it can show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Is complaining only to the harasser reasonable enough?
In this recent sexual harassment case, the employee met her four-element burden of establishing that her manager had sexually harassed her. The employer; however, maintained a sexual harassment policy in which it condemned the behavior and further encouraged employees to report sexual harassment.
But the plaintiff did complain — to her manager/harasser only.
She didn’t go to HR. She didn’t tell another supervisor. Instead, she told the manager to knock it off. Indeed, the manager promised that he would resign if the plaintiff didn’t turn him in to HR.
Except he never did. Rather, it was the plaintiff who ended up resigning because she claimed that the workplace had become so intolerable to continue to working there.
So, did the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise?” According to the federal court hearing the plaintiff’s case, maybe, but, maybe not:
It may not be reasonable for an employee complaining of the sexual harassment to believe complaining to the very manager who is sexually harassing said employee would satisfy the goal of allowing an employer to investigate and respond to complaints of sexual harassment….This is in light of the fact that the policy provides for the complaint to alternatively be made to the human resources department.”
Thus, this case will proceed to trial.
Steps employers can take to reduce sexual harassment
Do I think that the plaintiff acted reasonably by telling her manager to knock it off? Heck yes! That’s a staple of my respect-in-the-workplace training.
However, complaining cannot stop there, because a complaint to a harasser won’t necessarily end the offensive conduct and it generally won’t put the employer on notice of the offensive conduct.
So, check your anti-harassment policy and training materials. Do they suggest only that victims of sexual harassment report the offensive conduct to their direct supervisor or manager? If they do, get rid of them. Because, like in the case above, the direct supervisor/manager may be the harasser. And complaining in that case didn’t do much good, did it?
While you should also encourage victims to tell the harasser that the offensive conduct is not welcome, it’s not always easy for the victim to stand up for himself/herself.
So, don’t require it. Instead, require that victims (and witnesses) of sexual harassment complain to HR and a manager/supervisor who is not the harasser.
That should allow you to respond in a manner that is reasonably designed to end the harassment.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.