We’re used to thinking that as long as we have a solid system employees can use to report sexual harassment (and tell employees how to use it), we’re largely in the clear. Conventional wisdom says that employees who fail to report harassment can’t later surprise us with a lawsuit, since it’s impossible to stop harassment that we never learn about.
It turns out that’s not always true.
In a surprising new case, a court said all an employee had to do was tell the harasser to stop. When she was fired, in part at the behest of the harassing supervisor, she was able to sue despite never complaining about retaliation to HR or anyone else in the company.
Recent case: Three women took jobs with New Breed Logistics and were assigned to the receiving department.
There, each woman became the object of a supervisor’s advances and sexual comments.
Tiffany said the supervisor made daily sexual comments despite her demand for him to stop. Capricius claimed the boss came up behind her and pressed his groin against her buttocks even though she told him not to. Jacquelyn said the man made sexual comments to her so often that one day she “went off” and told him, “I don’t want to hear that s__t today.”
The women were all fired on the supervisor’s recommendation.
The EEOC took their case and a jury awarded them more than $2.5 million.
New Breed Logistics appealed, arguing that because they never complained to HR about the supervisor, they hadn’t engaged in protected activity and therefore couldn’t sue for retaliation.
The 6th Circuit Court of Appeals upheld the verdict. It concluded that as long as the harassed women expressed their desire for the supervisor to stop, they engaged in protected activity. It didn’t matter whether HR or other decision-makers knew about the underlying harassment. (EEOC v. New Breed Logistics, No. 13-6250, 6th Cir., 2015)