A Prompt Response to a Harassment Complaint Can Be the Difference Between Liability and No Liability

A recent federal district court from Illinois graphically demonstrates the benefits of a prompt response when an employer receives an internal harassment complaint from an employee. In this case, a female employee complained that two male employees had harassed her. She claimed that a coworker constantly harassed her starting in September 2010 and continuing into 2011, by doing such things as talking about the size of his genitals and wanting to have sex with her. She also alleged that one of her supervisors harassed her by making a number of suggestive comments to her. She claimed the supervisor’s conduct started sometime between June 2010 and March 2011.

The female employee first made an internal complaint about the alleged harassment in March of 2011 to one of her supervisors. At that time, however, she reported only the alleged harassment by her coworker. The supervisor told her to fill out a form regarding her complaint and to turn it in to him or a higher level supervisor. He also told her to “think about” whether she wanted to turn in the form because the male employee she was complaining about “had a wife and three kids and would be unable to work for [the employer] if she turned it in.”

The supervisor then spoke to the male employee and told him about the allegations and asked him to stay away from the female employee. The supervisor did nothing further about the complaint. He never checked to see if the employee turned in the form and he never reported the complaint to either human resources or to a higher level manager.

The female employee apparently did not complete the form or report the harassment further at that time. However, five months later, in August 2011, the female employee again complained, this time to a higher level supervisor. When she made her second complaint, she not only said the same coworker was harassing her, but she also claimed that the supervisor she had previously complained to had harassed her also.

In response to the second complaint, the employer immediately removed the female employee from the area where she worked to separate her from the two employees she complained about. In addition, an immediate investigation was conducted by human resources in response to the second complaint. The investigation concluded that the female employee’s allegations were unsubstantiated.

The female employee filed a sexual harassment complaint in federal court under Title VII. As to the plaintiff’s claims about harassment by her coworker, the court found that the employer had been negligent in failing to promptly respond to the employee’s first complaint. As a result, it denied the employer’s motion to dismiss that claim from the case. However, as to the complaint of harassment against the supervisor, the court did dismiss that claim. It did so because it found that the employer had taken immediate and appropriate action when that complaint was made. The court found as a result of the prompt response to the complaint about the supervisor, the employer “could not be held liable for [the supervisor’s] alleged conduct, even if that conduct constituted actionable harassment.”

This case teaches us a number of lessons. First and foremost, a prompt response can prevent liability – and prevent even having to go to trial on a harassment complaint – including when the harassment complaint has merit. As this case demonstrates, simply telling the employee to fill out a form is not enough.

Second, while the court did not focus on this issue, it is never a good idea for an employer to try to deter an employee from pursuing a harassment complaint. Although the court found that the lack of prompt action in response to the first complaint was enough alone to allow the harassment claim based on the coworker’s alleged conduct to go to trial, it would not be surprising that a jury would not look kindly on the supervisor’s actions in telling the employee “to think about” whether she really wanted to pursue her claim. Training supervisors not to make comments like this can go a long way in helping to prevent actionable harassment claims.

Third, while the court in this case did not react negatively to the removal of the female employee from the area where she worked when she made the second complaint, employers should proceed with caution before taking such action. Such action could be viewed as retaliatory or otherwise detrimental to the employee simply because the employee made a harassment complaint. While the circumstances will, of course, vary, it is often a better idea to either temporarily suspend the employees being complained about or, if possible, remove them from contact with the complaining employee until after the prompt investigation is completed.

Employers should review the Equal Employment Opportunity Commission’s guidance on sexual harassment as a starting point in developing harassment training that should help prevent some of the problematic issues involved in this case.