Employers can escape liability from some forms of supervisor harassment if the company can show it had a harassment policy, explained that policy to employees and used it to prevent or stop 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?
The answer is clear: Do exactly what you would have done had the complaint come to light earlier. In fact, you should conduct a full investigation and propose a solution that lets the employee return to a harassment-free environment.
For example, even if employees have already filed EEOC complaints alleging they were forced to work in a racially hostile work environment, you can punish anyone you conclude used racial epithets. You should also conduct training sessions and remind your workforce you won’t tolerate racial discrimination or harassment. That will go a long way toward convincing a court the employees should have complained to the HR office first—and that it’s their fault for not using your policy to stop the harassment.
Recent case: Municipal employees Johnny Jones and Kimberly Singleton, who are both black, worked for the same supervisor. About 15 years after Jones began working for the city and 10 years after Singleton did, the two filed EEOC complaints alleging racial harassment and discrimination.
They told the agency they had endured listening to foremen and co-workers make occasional racially tinged comments—like referring to black employees as “monkeys” and suggesting that Singleton could return to work promptly after childbirth just as women in the past had given birth in the fields and returned to work the next day.
Both Jones and Singleton knew about the city’s anti-discrimination and harassment policy and knew how to lodge an internal complaint. Neither ever did.
But as soon as the city got the EEOC complaint, it investigated, told employees they would not tolerate racial jokes, slurs or comments and ran a series of workshops on diversity.
The court dismissed Jones’ and Singleton’s racially hostile environment claims, reasoning that both employees knew how to complain. The court said it was obvious that if they had complained, the problem would have been corrected. (Jones, et al. v. City of Lakeland, No. 07-12720, 11th Cir., 2008)
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