In a sexual harassment lawsuit, a key legal question is whether the employee complained to the company about the harassment. But what, exactly, counts as an internal complaint under the law? The answer, discussed in detail below, depends on who the harasser is and what internal complaint policies the employer has in place.

The focus of this article is on an employer’s affirmative defense to a sexual harassment case where a supervisor harasses an employee but no concrete action is taken against the employee/victim. Under this scenario, the employer will be liable for the harassment unless it proves both that (1) the employer took reasonable care to prevent and promptly correct any harassment; and (2) the employee unreasonably failed to use any preventative or corrective opportunities offered by the employer. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).

How To Prove A Sexual Harassment Case

Under Title VII or the 1964 Civil Rights Act (Title VII), “[t]o succeed on a hostile work environment claim alleging sexual harassment, a plaintiff must show that the offensive conduct (1) was unwelcome, (2) was based on her sex, (3) was ‘sufficiently severe or pervasive to alter [her] conditions of employment and to create an abusive work environment,’ and (4) was imputable to her employer.” See, e.g., Ray v. International Paper Co., 909 F.3d 661, 667 (4th Cir. 2018).

The Employer’s Defense In A Sexual Harassment Case Involving A Supervisor

Assuming that the employee can meet these initial/prima facie elements listed above, then depending on the type of sexual harassment case at issue, the employer may be able to escape liability using an affirmative defense. As an initial matter, in certain cases the employer is automatically liable for harassment perpetrated by a supervisor that results in a tangible employment action, such as termination, demotion, etc. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher, 524 U.S. at 807; Ray, 909 F.3d at 667.

But if the supervisor’s harassment resulted in no tangible employment action against the employee, then the employer may attempt to prove the following affirmative defense (often referred to as the Faragher/Ellerth defense):

• “(a) that the employer exercised reasonable care to prevent and correct promptly any [ ] harassing behavior, and

• (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise.” Faragher, 524 U.S. at 807.

Note that the company must prove both elements of the defense.

Also, if the harassment is committed by a co-worker, as opposed to a supervisor, then the employee has the burden of proving that the employer negligently failed to promptly address and correct the harassment. The legal implications of this scenario will be covered in a forthcoming article.

What Counts As “Unreasonably Fail[ing] To Take Advantage” Of An Employer’s Anti-Harassment Policy?

How Quickly Should The Employee File An Internal Sexual Harassment Complaint?

A hotly contested legal element to the employer’s affirmative defense is whether the employee timely complained to the employer about the harassment. Employers will often argue that if an employee does not immediately report the harassment, then the employer should not be liable. This is a fact-intensive inquiry and, not surprisingly, courts have ruled that what may be considered a “timely” complaint varies. Compare Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1075-58 (9th Cir. 2007) (nearly three weeks delay in reporting is reasonable) with Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1290 (11th Cir. 2003) (delay of nearly three months in reporting is unreasonable).

While it it generally true that, the sooner an employee complains the better their legal argument will be, good reasons exist why an employee may not report, or will delay reporting, sexual harassment. For example, if the employee reasonably believes they will face retaliation for doing so. See, e.g., Carroll v. ATA Retail Serv., Inc., 2016 WL 8417377, at *9 (N.D. Ga. Jan. 8, 2016).

Does An Employee Who Fears Retaliation Still Have To Complain Internally About Sexual Harassment?

Notably, many cases discussing what constitutes a “reasonable belief” about potential retaliation if an employee reports harassment are devoid of real-life considerations and take a decidedly pro-employer slant. For example, a number of courts have found that fear of losing one’s job if they report sexual harassment does not excuse an employee from reporting harassment. See, e.g., Swindle v. Jefferson Cnty. Comm’n, 593 Fed. Appx. 919, 924-25 (11th Cir. 2014). Consider a single mother who is sexually harassed and believes her company (perhaps at the behest of the supervisor who harassed her) will fire her if she complains about the harassment. According to some courts, she will lose her sexual harassment case if she does not risk her livelihood by complaining. If, however, an employer takes the extreme step of telling an employee that reporting harassment invites retaliation, then the employee can reasonably forego making a complaint. See Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1237, 1254 (M.D. Ala. 2001).

Must The Employee Complain About Sexual Harassment Repeatedly?

What about if an employee, or their colleague(s), have previously complained about harassment, but the employer did nothing in response? Some courts have said this may excuse an employee from reporting or making multiple complaints about harassment. To illustrate, where supervisors “laughed off” complaints about harassment, plaintiffs feared losing their job in retaliation for their complaints, and conditions did not improve after complaints had been lodged, the court allowed the jury to decide if the complaints, or lack thereof, were reasonable. See Crawford v. Newport News Industrial Corp., No. 4:14-cv-130, 2018 WL 4561671, at *19 (E.D. Va. Mar. 2, 2018). But other courts have required an employee to make repeated complaints about sexual harassment even if the employer failed to address the harassment after the initial complaint. See Lauderdale v. Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 165 (5th Cir. 2007).

Must The Sexual Harassment Complaint Be Written?

While written internal complaints about sexual harassment may be preferable compared to verbal ones, a verbal complaint is sufficient. See, e.g., Jones v. District of Columbia, 646 F.Supp.2d 42, 49 (D.D.C. 2009). The key point is that the complaint, whatever form it takes, puts the employer on notice of the sexual harassment.

Key Takeaways

Given that the question of whether an employee “unreasonably failed” to take advantage of an employer’s sexual harassment policy is fact-intensive, there is no “one size fits all” answer. But the following factors will often help an employee demonstrate that they adequately complained about the harassment they suffered thus making it harder for an employer to win its affirmative defense.

1. If possible, make the complaint in writing.

2. Submit the complaint as soon as possible after the harassment. If this is not feasible, provide specific reasons why the complaint was not made earlier (for example, the employee was threatened with retaliation if they filed the report).

3. If the company has an anti-harassment policy in place, and most employers do, follow the reporting mechanisms in the company policy if possible.

4. If the first complaint does not stop the harassment, make multiple complaints if possible.