Q. A female employee has made a hostile environment claim for the first time. She alleged that her male supervisor began sexually harassing her more than two months ago. Our company has appropriate anti-harassment policies and complaint procedures. The employee was trained about them and received copies. She claims she didn’t complain sooner because she feared her supervisor would retaliate against her. Based on her excuse, will we still be able to defend against a lawsuit claim by asserting that she unreasonably failed to use the complaint procedure available to her to prevent and stop any alleged harassment?
A. Under the U.S. Supreme Court’s landmark decisions in Faragher and Ellerth, an employer will not be held vicariously liable for a supervisor’s sexually harassing conduct if the employer can prove that the complaining employee unreasonably failed to mitigate any harm and failed to use the preventive or corrective opportunities afforded her.
If you can show that the employee was familiar with the policies and procedures and failed to use them, the court will probably determine that she acted unreasonably. That’s especially true if she had numerous opportunities during other discussions or meetings with HR or upper to discuss her concerns. Florida courts and the 11th Circuit Court of Appeals, which covers Florida, have ruled in employers’ favor in such cases. In some of those cases, the delay amounted to 2½ months, which was deemed unreasonable.
While many employees have tried to excuse waiting to report harassment by asserting they feared possible retaliation by their supervisors, the courts have ruled that “a generalized fear of retaliation simply is not sufficient to explain a long delay in reporting sexual harassment.”
One court recently explained, “It is undeniable that raising problems regarding sexual harassment can be uncomfortable for the employee, but if we were to allow an employee’s subjective, ungrounded fears of unpleasantness or retaliation to alleviate an employee’s reporting requirement, we would completely undermine Title VII’s basic policy ‘of encouraging forethought by employers and saving action by objecting employees.’”
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