The Sixth Circuit Court of Appeals just potentially opened up a big ole can of employer liability.
In EEOC v. New Breed Logistics, the Court affirmed its prior decision that for purposes of a retaliation claim, a complaint to a supervisor that he stop his sexually harassing conduct – even if no other manager or supervisor ever learns of the complaint – constitutes protected activity under Title VII. The opinion recognized that other courts have concluded that a complaint directed solely to a harassing supervisor does not constitute protected activity - and rejected it, holding that if “the other elements of a prima facie case are present, a harassment claim only becomes a retaliation claim if, after the harassee opposes the harassment, the harasser initiates adverse action against the victim. Thus, giving retaliation victims protection where they complain to the harasser will not morph all harassment claims into a retaliation claim, absent some materially adverse action.”
Yet again, this decision shows that employers need to educate the daylights out of their employees when it comes to complaint procedures. Employers should also have multiple ways in which employees can complain (and educate their employees about this) to ensure that the employer learns of and proactively addresses the complaint. Similarly, as always, employers should be training managers and supervisors to handle complaints and to promptly report them to HR.