Sexual Harassment (Round 2), Quirky Question # 5

Quirky Question # 5:

I read your Quirky Question # 4.  Unlike your last reader, I am not in our company’s Human Resources Department.  But I am the attorney within our Office of the General Counsel with responsibility for addressing employment issues.

One of our HR representatives informed me that she had received a sexual harassment complaint by one of our employees.  The complaint involved conduct by one of our company’s executives.  Although the employee was apprehensive about making a complaint against this individual due to his stature within the company, she did so.

Unlike the fact pattern of your last Quirky Question, although the employee was uneasy about the company initiating an investigation, she did not advise our HR representative that she would address the problem herself.  Rather, she clearly wanted HR to help and it did.  The company conducted an investigation, which corroborated many of the employee’s complaints (dimwitted comments relating to sex, affectionate physical gestures, discussion of marital problems, odd interaction at after-work gatherings at a local watering hole, etc.).  We took appropriate disciplinary steps to stop the behaviors that were troubling our employee, not to mention inconsistent with our Company’s harassment policy.

Lately, I have noticed that the complaining employee seems to be spending a lot of time with the Executive about whom she complained.  She seems to be interacting frequently with him, both at work and, as far as I can tell, after work.  I’m not sure what HR should do, what I should do, or whether the company needs to do anything at all.  Got any advice?

Dorsey’s Analysis:

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 (4th 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.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

You may also like...