Sexual harassment sometimes grows slowly, starting out fairly innocuously before accelerating to behavior that creates a truly hostile work environment. Courts understand that and have created a specific legal doctrine to help harassed employees—the continuing violation doctrine.
They did so because strict EEOC filing deadlines force employees to complain to the agency very soon after they experience sexual harassment—typically within 180 days.
The continuing violation doctrine allows employees who have experienced sexual harassment to add new incidents to their complaint even though many months or even years may have passed since an initial event.
That makes it critical for employers to act fast on allegations, before they build up.
Here’s why: Courts reward employers that try to stop harassment and prevent further offenses. They won’t apply the continuing violation doctrine if the employer punished the harasser—even if he or she later resumes the behavior.
Recent case: Paula Parrish worked for Johnston Community College. She claimed that beginning sometime in 2005, George Jones lavished her with unwanted attention, bringing her chewing gum and leaving it on her desk for her to find when she arrived at work. She asked him to stop.
Then she set up a webcam to monitor her office while she was gone. She discovered that Jones had masturbated while sitting at her office chair. He also placed a piece of gum on his penis and then rewrapped it and put it on her desk. She showed the webcam images to, which fired Jones.
Around the same time, Parrish complained that another co-worker had been making sexual comments and offensive jokes for years. The college placed him on probation and transferred him to another facility.
Then, two years later, the co-worker told Parrish that his new neighbors were strippers.
Apparently, that was the last straw for Parrish, who filed an EEOC sexual harassment complaint. Meanwhile, the college forced the man to resign for again violating its sexual harassment policy. Parrish wanted the case to be considered as a continuing violation and sought to include all the past conduct in her lawsuit.
The court refused. It said the college had always acted promptly when she complained.
That, said the court, cut off the college’s liability. The court treated the final incident as a separate event and concluded that the “stripper” comment alone did not amount to sexual harassment. The case was dismissed. (Parrish v. Johnston Community College, No. 5:09-CV-22, ED NC, 2011)
Final note: You must take effective action to cut off liability. Obviously, the more serious the behavior, the more severe the punishment should be. That’s what the employer did in this case. The masturbating co-worker was fired; the other harasser was placed on probation, transferred and then forced to resign when he repeated the behavior two years later.
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- Conduct truly independent investigations to ferret out retaliation by rogue supervisors
- Creating an effective blog policy to limit employer liability