Sometimes, an employee will hesitate to report a supervisor or manager whose behavior crosses the sexual harassment line. She may hope the problem will go away, or that ignoring the harasser—like ignoring a bully in the schoolyard—will rob him of the power to get a reaction.
Then, months later, the employee can’t take it anymore and goes to HR or .
Until recently, some employers have tried to argue that failing to complain right away was tantamount to saying that the problem wasn’t severe enough and the harassment wasn’t bad enough to create a sexually hostile environment.
But a recent 5th Circuit Court of Appeals case shows that employees can prove they really did feel harassed even if they waited a long time before complaining.
Recent case: Jenna Aryain, a college student working part time at Wal-Mart, claimed her boss sexually harassed her. However, she waited four months before coming forward, even though she alleged that he constantly asked her out, commented on her buttocks and made a number of very specific and crude propositions for sexual activities.
Wal-Mart found out about the problem secondhand. One day the boss yelled at Aryain, who was so upset she left work and told her dad about the alleged harassment. Aryain’s father called management to complain that his daughter was being harassed. Only then did Aryain complain to HR and tell management about specific incidents and comments.
Wal-Mart argued that Aryain couldn’t prove she worked in a sexually harassing environment because she couldn’t show that she subjectively perceived her working environment to be hostile or abusive. In other words, Wal-Mart argued that even if a reasonable employee would perceive the environment as hostile and sexually charged, Aryain was so tough that she wasn’t affected and therefore wasn’t harmed.
The court didn’t buy it. Aryain’s long silence didn’t sink her case. She will be allowed to tell a jury how she felt even if she didn’t openly complain right away. (Aryain v. Wal-Mart Stores of Texas, No. 07-20552, 5th Cir., 2008)
Tip: Don’t dismiss a sexual harassment complaint just because an employee waits to come forward. Treat her as if she had complained right away, and punish the harasser if you believe the victim is telling the truth.
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