Employers with a robust anti-harassment policy can sometimes escape liability if employees unreasonably fail to take advantage of the policy to report alleged harassment. The idea is that employers should have a chance to fix the problem.
But if your process is somehow stacked against alleged victims, don’t expect a court to let you off the hook.
Recent case: When Iwona began her job, she had a two-month probation period. Soon, her supervisor began making comments about her body when she wore skirts and suggested that her husband was a lucky man. He commented on her beautiful legs and once took her face in his hands and asked her why she was so pretty. She rejected his advances.
Shortly after, Iwona was placed on extended probation. Then, four months after starting the job, she was fired.
She sued, alleging sexual harassment.
When a jury awarded her $85,000, the employer asked the judge to reject the judgment, arguing that Iwona never went to HR to report the harassment. But the court noted that the head of HR was the daughter of the alleged harasser. It said Iwona could hardly be expected to use the process under those circumstances. The jury decision stood. (Joblowska v. Soar, No. 13-2845, ED PA, 2015)
Final note: Make sure you provide several alternative reporting methods and that employees know they can choose the one they are most comfortable with.