While it’s vital to react promptly when employees formally file sexual harassment complaints, what do you do if they approach you informally and don’t want to make a formal complaint?
At a minimum, you should check back a short while later and also follow up with the alleged harasser. If the accusing employee says the behavior has stopped, close the case. Just make sure the employee who made the original complaint knows he or she can come forward again if anything else happens, and explain how to get in touch.
You likely aren’t responsible for subsequent co-worker harassment until you hear from the complainant again. Because you’ve provided the information needed to report the harassment, any inaction and lack of cooperation on the alleged victim’s part would probably amount to unreasonableness.
Bottom line: When there’s a mechanism in place to report co-worker harassment, and the "victim" unreasonably doesn’t take advantage of it, you aren’t liable.
Recent case: Paula Davenport approached her employer in 1998 when she thought a co-worker was sexually harassing her. But she asked not to make a formal report.
Instead, her employer spoke with the alleged harasser and followed up with Davenport shortly thereafter. The matter was closed after assurances the behavior had stopped.
Fast forward a few years to more complaints about the same alleged harasser. This time, several women said he’d been harassing them. After an investigation, the culprit was suspended without pay for five days.
The women sued anyway, alleging sexual harassment and claiming the employer knew about the co-worker’s propensity to harass. But the 5th Circuit Court of Appeals (which includes Texas) dismissed their case. It concluded that the earlier informal complaint didn’t amount to “notice.” And since the employer acted fast once the formal complaints were made, it wasn’t liable. It had remedied the situation. (McCullough, et al., v. Kirkum, No. 06-30481, 5th Cir., 2006)
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