Employers can escape liability from some forms of supervisor sexual harassment—if the employee wasn’t fired, threatened, demoted or otherwise punished for not playing along and the company can show it had a sexual harassment policy, explained that policy to employees and used it to prevent or stop sexual harassment.
Employees have an obligation to use the process, even if doing so may be uncomfortable. If they don’t, they may lose the right to sue for a hostile work environment.
But what happens if an employee has tolerated mild harassment for years without complaining and then the behavior escalates? If the employee stops work, takes disability leave and then files a sexual harassment complaint, what should you do?
The answer is clear: Do exactly what you would have done had the complaint come earlier, before the employee took leave. In fact, you should conduct a full investigation and propose a solution that lets the employee return to a harassment-free environment.
If she refuses, chances are a court won’t hold you responsible, as the following case shows.
Recent case: Deborah Thornton worked for FedEx and found her supervisor’s frequent sexually oriented jokes and comments offensive. She didn’t, however, complain to anyone, choosing instead to ignore the man.
Then, as the supervisor was preparing to marry, and apparently lamenting the upcoming nuptials, he began to pressure Thornton for sexual favors. She didn’t succumb but instead stopped working due to stress. Thornton went out on short-term disability leave.
Two months into the leave, when she had to ask for more time, she finally revealed that she had been sexually harassed. FedEx had a sexual harassment policy and invited employees to complain, and Thornton knew about the policy. But she said she hadn’t complained earlier because she was afraid.
FedEx investigated the claims but couldn’t substantiate them. It did, however, offer to let Thornton return to work under a different supervisor. She refused and elected to collect workers’ compensation instead. About a year later, the company terminated her when she still wouldn’t return to work.
She sued, alleging a hostile work environment. The court looked at FedEx’s solution and concluded that had Thornton complained earlier, chances are the sexual harassment would have stopped. The belated investigation was proof that the company policy could work; Thornton’s refusal to use it had been unreasonable. (Thornton v. FedEx, No. 07-5116, 6th Cir., 2008)
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