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The Practical Employer

Court Sets an Unusually High Bar for Unlawful Harassment

An employee did not lose this case because she was subjected to a high level of harassment but because, according to the court, she never complained to anyone.

How high is the bar for what qualifies as unlawful sexual harassment in the 4th Circuit? Pretty damn high, if you ask me. Consider that in Wilson v. Gaston County [pdf], the Court concluded that the following misconduct did not entitle the plaintiff to a jury trial on her sexual harassment claim:

Wilson contends that Putman began harassing her…, telling her she had a “nice ass,” sending her pictures of his genitals, asking for naked pictures in return, expressing his desire to kiss and have illicit forms of sex with her, and making other unwanted physical contact. This behavior persisted despite Wilson’s repeated protests.

The most serious of these events occurred in December 2011. Wilson was sitting in the passenger seat of an emergency vehicle parked at a county station when Putman reached through the open vehicle door and began to tickle and grope her. When she resisted, Putman pulled her from her seat and pinned her against the side of the vehicle, proceeding to grope her breasts, pelvic area, and genitals until a co-worker approached. Then, in January 2012, Putman walked up behind her and slapped her buttocks so hard that her sunglasses and clipboard went flying. Wilson explains that both encounters left bruising either behind her right knee or on her buttocks, respectively.

This employee, however, did not lose this case because she was subjected to this level of harassment. Instead, she lost because, according to the court, she never complained to anyone about it.

The primary objective of sexual harassment liability is a prophylactic one. Notice is therefore a predicate of employer liability because it provides an opportunity for the employer to correct and prevent sexual harassment, and to do so sooner rather than later. …

As a result, we have repeatedly held that an employee claiming harassment by a coworker bears significant responsibility in notifying the employer. Indeed, an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists under its reasonable procedures. Particularly in large entities with a great number of workers, employers are not necessarily aware of every interaction between employees and cannot be saddled with the insurmountable task of conforming all employee conduct at all times to the dictates of Title VII, irrespective of their knowledge of such conduct.

This does not mean employers can assume a mentality of see no evil, hear no evil. In fact, an employer may be charged with constructive knowledge of coworker harassment when it fails to provide reasonable procedures for victims to register complaints. By establishing an environment hospitable to reporting, employees are encouraged to come forward, sexual harassment can be prevented sooner rather than later, and employers will not be burdened with liability for conduct of which they were unaware. (internal quotes and citations omitted.)

Thus, this court’s definition of “constructive knowledge” such that an employer cannot claim ignorance of harassment is the failure to provide reasonable procedures for victims to complain. Otherwise, according to this court, an employee cannot win a harassment case because of his or her failure to place the employer on notice of a need to investigate and remedy the offending misconduct. Because this employee admitted that she failed to complain to HR, she lost her claim.

I hate this result. Just last week, I cautioned the exact opposite in commenting on the allegations levied against Fox News and Bill O’Reilly:

Readers, is it appropriate to ignore workplace harassment just because no one has brought it HR’s attention? I’ll give you two choices — “no” or “no”.

Under no circumstances should you ever bury your corporate head in the sand in the face of workplace harassment. You must not ignore harassment that you know about or should know about. It is not a defense for you to close your eyes and hope that it will all be gone when you open them. Just ask Fox News (which, according to The New York Times, has settled the claims of five women for $13 million) how that strategy has worked out for it.

I believe that Wilson is an anomaly, not gospel. Should you rely on Wilson to ignore harassment that occurs in your workplace, I can guarantee a lawsuit, and I cannot guarantee that your result will be anywhere near as successful as Gaston County, which, in my opinion, dodged a huge bullet.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.