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‘Keep it confidential’ may let employers off liability hook

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in Discrimination and Harassment,HR Management,Human Resources

You have a robust sexual harassment  policy, and everyone from the lowest level employee to the company president knows how it works. But what happens if an employee tells a supervisor about possible harassment and then asks him or her not to take it up with HR?

Unless the complaint spells out a clear harassment situation, ignoring the matter or trying to fix it the way the employee suggests probably won’t mean the company will be liable—even if the harasser’s behavior gets worse.

Recent case: Bobbie O’Brien was a nurse who worked alongside a pediatric neurosurgeon. The hospital had an anti-harassment policy that required all supervisors to report suspected sexual harassment to HR. In turn, HR was to conduct a prompt investigation and resolve the matter. All employees received regular sexual harassment training, including information on how to complain.

O’Brien began to get evening phone calls from the pediatric surgeon, asking her to meet him for a drink. She declined the offers and went to her supervisor for help. O’Brien described the calls and asked that the information be kept confidential. She then suggested the problem might be solved if the hospital removed her cell and home phone numbers from the directory. She then changed those numbers and the calls stopped.

But the surgeon then began making physical advances at work. This time, O’Brien used the words “sexual harassment” and she notified HR. It investigated and determined no harassment took place, but admonished the doctor to keep things professional. O’Brien quit.

She sued, alleging she had worked in a hostile environment. She claimed that telling her supervisor about the calls was enough to put the hospital on notice, making it liable for the escalation after HR did nothing. But the 11th Circuit Court of Appeals nixed her lawsuit—chiefly because she had asked her supervisor to keep quiet about the phone calls. The court also said that, standing on their own, the calls weren’t sexual harassment. Asking someone out for drinks isn’t tantamount to harassment. (Nurse “BE” v. Columbia Palms West Hospital, et al., No. 06-12159, 11th Cir., 2007)

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