Our company has a sexual harassment policy. The policy makes clear that an employee who feels as though he or she has been harassed should report the problematic conduct to our Director of Human Resources. The policy also provides that, if more convenient, or for any other reason, the employee also can report the harassing behaviors to anyone else in management. Essentially, we’ve tried to make it as easy as possible for an employee to report harassment so our company can address the employee’s concerns effectively.

One of our employees recently filed a Charge of Discrimination with the EEOC. She claims that she was sexually harassed by the Director of Business Development, one of our company’s managers, and describes some pretty serious conduct. In her Charge, she contends that she directly confronted this individual and advised him that his behaviors were unwelcome. She also stated in her EEOC Charge that her direct communications with this individual constituted her “report” of sexual harassment to company management.

Surprise, surprise, our Director of Business Development never said anything to anyone else about this harassment “complaint”. Is this legit? Can the sole report of the harassment by the alleged victim of the harassment be made to the harasser?

Roy’s Analysis:

You pose an intriguing question – does it suffice for a harassment victim to “report” the harassment to the harasser or must she also, or alternatively, register her harassment complaint with someone else in management? You may or may not have realized it but your inquiry raises an interesting aspect of the U.S. Supreme Court decisions of Faragher and Ellerth, which I will discuss below.

As you describe, your company has a sexual harassment policy. (Every company should but not every company does.) Further, as you point out, your policy is designed to facilitate the reporting of problematic behaviors. Your employees can report their concerns to the Director of Human Resources or others in management. Of course, this verbiage in your policy is what, at least in part, has caused the problem.

Here, your employee apparently was subjected to sexual harassment by your Director of Business Development, a member of your Company’s management. You state that she describes some “pretty serious conduct” though you have not identified the types of behaviors involved. You also described the harassment victim as “one of your employees.” Based on that characterization, I will assume that she remains employed with your company and was not terminated by your Company. This assumption could be important, for reasons I will explain below.

In 1998, the U.S. Supreme Court decided two companion sexual harassment cases, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Among other aspects of the Faragher/Ellerth decisions, the nation’s high court established an affirmative defense for employers accused of sexual harassment. Essentially, in cases where the affected employee has not suffered tangible economic harm (e.g., a termination, demotion, pay freeze, denial of a promotion, etc.), the Court held that employers could avoid liability where: a) “the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior;” and b) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher at 807; Ellerth at 765.

It would appear from the facts you have provided that your employee has not suffered tangible economic harm. (I would qualify this observation by stating that if the harassment was sufficiently severe and led your employee to resign her employment, she may be able to claim that she was “constructively discharged”. If discharged, actually or constructively, she would be able to claim “tangible economic harm” and the affirmative defense could drop out of the calculus entirely. Up to this point, however, that does not appear to have happened.) Given the fact that she has not suffered tangible economic harm, a separate inquiry is whether your company can take advantage of the affirmative defense.

As you described, your company does have a sexual harassment policy. Assuming your policy includes provisions designed to investigate promptly harassment complaints and redress inappropriate behaviors, it would seem that your organization has satisfied the first prong of the Faragher/Ellerth test. The more difficult question is whether your employee “unreasonably failed to take advantage” of your policies or to “avoid harm otherwise.” One could argue that your employee’s failure to report the problems to anyone but the person causing the problems did not constitute a reasonable effort to “avoid harm otherwise.”

Note, however, that there is relatively little case law on what the “avoid harm otherwise” language really means. Here, your employee will be able to point out that your policy specifically provided that she had the right to report the harassment to either your Director of Human Resources or anyone else in management. As you concede, she did complain of the harassment to a member of your management, albeit the same person who was engaging in the harassing conduct. Arguably, then, she fulfilled her obligations to report the harassment and the problem arose because your manager failed to fulfill his responsibilities under your policy and share with your Human Resources Department the fact of the harassment complaint. While he may have had a personal incentive not to report the complaint, presumably his failure to report conflicts with your policy. Moreover, arguably, his failure to report makes it appear more likely that he had engaged in culpable behavior. Presumably, if the allegations were entirely specious or false, your Director of Business Development would have welcomed an investigation to clear his name.

One relatively recent case addressed this factual context – i.e., reporting the harassment to the harasser. In Gorzynski v. JetBlue Airways Corporation, No. 07-4618-cv (2nd Cir. February 19, 2010), the Second Circuit considered a summary judgment determination by a district court in a case where the plaintiff had registered her complaints of harassment with the harasser, who was a member of management. Like the fact pattern you describe, JetBlue’s harassment policy provided that a harassment complaint could be made by an employee to “the immediate attention of his or her supervisor, the People Department [that is, the HR Dept.] or any member of management.” Gorzynski complained of harassment to the person she accused of harassment, but no one else in management. JetBlue took the position that it was unreasonable for Gorzynski not to complain to other members of management or to the People Department.

The Second Circuit did not buy JetBlue’s position. “We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints. There is no requirement that a plaintiff exhaust all possible avenues made available where circumstances warrant the belief that some or all of those avenues would be ineffective or antagonistic.”

Like so much of employment law, and the law of sexual harassment in particular, these cases are evaluated based on the totality of the circumstances. The Second Circuit reiterated that theme in the Gorzynski case when explaining its holding: “we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser. Instead we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.”

With this framework, the Second Circuit reversed the trial court’s grant of summary judgment. The Gorzynski decision also illustrates the maxim, “bad facts make bad law.” Although I don’t dispute the correctness of the Second Circuit’s analysis, one has to wonder whether the court may have been influenced, at least in part, by some of the very negative facts involved in the case. As described by Gorzynski, there was sexist conduct, racist conduct, and inexplicable differential treatment of Gorzynski and her peers. How all of those facts may have influenced the appellate court on the sexual harassment issues is difficult to discern.

What are the takeaways from this decision? First, these cases will be evaluated on their individual facts. Second, the fact that the victim of the harassment only reports the harassment to the harasser will not in itself preclude a sexual harassment claim, particularly if the harasser was a member of company management. Third, the employee’s position will be enhanced if the company policy specifically provides that the harassment victim may report the harassment to anyone in management. Fourth, as a corollary to the last observation, one way to reduce the likelihood that your company will confront this problem would be to revise your sexual harassment policy so that the victim must report the harassment to the head of your Human Resources Department or any other member of management besides the alleged harasser. Alternatively, companies could allow the harassment victim to report the problems to the harasser, but simultaneously impose an obligation on the victim to apprise the HR Department of the fact that she has done so. With this addition to the language in the policy, companies should be able to avoid the problems JetBlue and your firm encountered.