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Sexual Harassment (Round 2), Quirky Question # 5

October 29, 2007 | Posted by Ginsburg, Roy | Topics: Sexual Harassment, Avoid Harm Otherwise Comments/Questions

Roy's Analysis of Quirky Question # 5

November 5, 2007 | Posted by Ginsburg, Roy | Topics: Sexual Harassment, Avoid Harm Otherwise

In my view, you need to figure out what's going on between the two employees. For that reason, I would advocate more direct and proactive steps than described in the reader's response displayed below. Especially since the interaction between the complaining employee and the executive has been sufficiently open for you to "notice," an interview with the employee who brought the initial complaint is warranted.

I would want to know whether there has been any further harassing conduct. I would want to know whether their "relationship" has changed and whether the interaction between them is "welcome" to her. (Remember: the standard is not whether the conduct is "consensual" but instead, whether it is "welcomed." In the very first harassment case that reached the US Supreme Court back in 1986, the nation's high court made clear that sometimes "consensual" behavior is "unwelcome.")

If the employee who brought the initial complaint advised you (or your designee) that she was not appreciative of the increased interaction with the Executive, I would make an effort to try to understand why it is occurring. Is she being pressured? Does she fear retaliatory conduct? To the extent she expresses either of those sentiments, I would seek to understand the factual basis for her beliefs.

If, however, she does not report those problems, your company may be insulated from potential liability, even if later problems occur between the two employees. Recall that in the companion Faragher/Ellerth cases the US Supreme Court decided in 1998, the Court created an affirmative defense for employers to certain types of sexual harassment claims. Among other facets of that decision, the Supreme Court stated that to prevail on a sexual harassment claim where the complaining employee has not suffered "tangible economic harm," the employee must demonstrate that she availed herself of the company's sexual harassment policy and took steps to "avoid harm otherwise." That phrase has not seen a great deal of decisionmaking by the lower courts but there is at least one case that may be analogous.

In Brown vs. Perry, 184 F.3d 388 (4^th Cir. 1999), the federal appellate court held that a female employee who went out drinking and dancing until the early morning hours with a supervisor, after which she had accompanied him to his hotel room, had failed to "avoid harm otherwise." Her lawsuit was dismissed, in part because this was a person whom, she claimed, had sexually harassed her previously under very similar circumstances. In affirming the grant of summary judgment by the trial court, the Fourth Circuit concluded that it was inexcusable for her to accompany a person who previously had physically accosted her back to his hotel room at midnight after a night of drinking and dancing. Both the district and appellate courts had little sympathy for the victim when a similar incident occurred a second time under circumstances that mirrored the first situation leading to the initial complaint.

If your employee continues to interact with the Executive about whom she previously complained, especially in an affectionate or sexual way, your company may well have an argument that she failed to "avoid harm otherwise" in the event she initiates a lawsuit based on any harassing conduct following your investigation and resolution of her first complaint.

Readers' Responses to QQ # 5

October 30, 2007 | Posted by Ginsburg, Roy | Topic: Sexual Harassment

Response # 1: Regarding QQ#5, I think one could simply draw the conclusion that the Company's prompt remedial measures in response to the initial complaint seemed to have worked. Whether it was a matter of misunderstanding, miscommunication, or just the need for some education, it could be that the executive has come to understand the boundaries of permissible conduct and both parties are putting this incident behind them and simply getting on with their professional relationship. In other words, sometimes these remedial measures actually do work.

Now, that said, I think it might be appropriate for someone in HR to check back in with the complaining employee. In fact, it is probably a "best practice" to check back in with a complaining employee after some period of time, to make sure that the initial situation has been taken care of and/or there are not new problems.

In the course of checking back in, I would propose that the HR person allude to the fact that the complainant and the executive appear to be working and spending time together -- not in an accusatory way, just as a matter of observation. The HR person could say something positive like, we hope that means the previous issue between the two of you has been satisfactorily resolved and maybe also remind the employee about her right to be free from retaliation, etc. -- something to open the door to the employee, in case she had something more she wanted to report.

If the employee says everything is fine, I would make a note to the file about this conversation.