The law of
sexual harassment requires employees who believe they have been harassed to follow their
employers’ anti-harassment procedures-which typically require employees
to complain to a high company official in order to allow the company to
remedy the situation-before they may file a sexual harassment lawsuit.
A recent decision from the Eighth Circuit Court of Appeals,
Adams v. O’Reilly Automotive, Inc., illustrates the perils of failing to file a timely internal complaint
of sexual harassment.
Adams, a female employee claimed that her supervisor had sexually harassed her
for more than two and a half years. However she never reported the harassment
to company officials, and when she did finally make a complaint through
the company’s sexual harassment telephone hotline, her supervisor
was almost immediately discharged.
The employee subsequently filed a sexual harassment lawsuit, but the employer
moved for summary judgment. The company argued that the employee never
filed an internal sexual harassment complaint despite the fact that the
company had adopted and promulgated a zero-tolerance, multi-channel complaint
procedure for sexual harassment claims, which the employee admitted she
was aware of.
In response, the employee argued that despite the existence of the company’s
written anti-harassment policy, in practice, the policy was not effectively
enforced and thus the employer should not be permitted to rely upon it.
In support of this contention, the employee first argued that because
the company typically required allegations of sexual harassment to be
supported by corroborating evidence before taking action against an alleged
harasser, this rendered the policy ineffective. The court rejected this
argument, finding that even if the company required corroborating evidence
of harassment, this does not render the company’s policy an ineffective
one, as requiring other evidence of discrimination beyond that of the
victim is a reasonable investigatory approach and did not, in itself,
vitiate the reasonableness of the police. Indeed, the court on this point
cited with approval a decision from the Eleventh Circuit (the federal
appeals court with direct authority over the federal district courts of
Georgia, Alabama and Florida),
Baldwin v. Blue Cross/Blue Shield of Alabama, in which the court concluded that “there is no requirement that
the employer credit uncorroborated statements the complainant makes if
they are disputed by the alleged harasser.”
The employee also argued that despite the existence of the anti-harassment
policy, the company had a history of ignoring sexual harassment complaints
and failing to discipline harassers. The court did observe that despite
even the strongest written anti-harassment policy, if the employer routinely
ignores it, then no matter how good it is in theory, the company cannot
rely on it to assert a defense to a sexual harassment claim. On this point,
the court found that although the employee pointed to five other employees
whose sexual harassment claims were not addressed by the company, only
one other complaint had not been adequately addressed-in the other instances
advanced by the employee, the harassed employee either did not make a
timely complaint or the employee dropped her claim after making an initial
The court also rejected the employee’s argument that the company
should have or must have had notice of the harassment due to the fact
that it occurred over a two and a half year period. The court also rejected
this argument, concluding (again following an Eleventh Circuit precedent)
that because the company had an effective policy that advised employees
of what to do to make a sexual harassment complaint, the company could
not be charged with constructive knowledge of the employee’s claim
since the employee did nothing to bring it to the company’s attention.
The court then addressed the issue of the employee’s failure to file
an internal complaint for more than two years. The court concluded that
because the employee failed to make a complaint for more than two years,
and that as soon as she did the harasser was discharged, the employee
acted unreasonably in delaying her complaint. The employee argued on this
point that she was imply waiting to locate a corroborating witness before
going to the company to complain. But the court rejected this argument,
concluding that although it could understand why an employee might wait
to gather other evidence before coming forward, this does not in itself
excuse the failure to come forward to report harassment.
Accordingly, the court concluded that the employer had an effective sexual-harassment
complaint procedure, and that the employer’s failure to take advantage
of it barred her claim for sexual harassment.
Although this decision is obviously not an employee friendly one, it drives
home the absolute necessity for employees to speak up as soon as possible
and follow their employers’ harassment procedures if they believe
they have been harassed in the workplace.