Employee Fails to Report Sexual Harassment For Fear of Retaliation-Can She Make a Claim Under Title VII?

the situation

Courts have found that employers have a valid defense to a sexual harassment claim if they can show that they have a procedure in place for reporting this type of situation and an employee failed to follow it.  But what if the employee takes the position that reporting it will do no good?

the ruling

A federal court in North Carolina recently found that where an employee had presented evidence that reporting sexual harassment in accordance with the employer’s policy would have only made her situation worse, her failure to report may be reasonable.  Goad v. North Carolina Farm Bureau Mutual Insurance Co., Case No. 1:16-CV-1332 (M.D.N.C. December 4, 2017).

Mitzi Goad was an employee of North Carolina Farm Bureau who claimed that she was sexually harassed by a co-worker and further, that after she complained to her supervisor, the supervisor joined in the harassment and permitted the co-worker to bully Goad and continue harassing her. Goad claimed that the supervisor told her that she should not bother telling anyone higher up about the situation as that would only backfire.  Goad ended up quitting her job after several months of this treatment.  Goad bought claims against Farm Bureau under Title VII for constructive discharge, claiming that Farm Bureau had created a hostile work environment based on her gender, and in retaliation for her complaints about sexual harassment.

Farm Bureau didn’t dispute that the sexual harassment had occurred, but argued that because Goad had not properly followed its procedure for reporting sexual harassment, she could not proceed on her claim of hostile work environment.   There is an affirmative defense available to employers if it shows that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise (Faragher v. City of Boca Raton, 524 U.S. 775 (1998)).

Farm Bureau argued that here, its policy clearly urged employees to report sexual harassment to HR or its general counsel.  But Goad said that she did not report the harassment to HR or the general counsel because she had seen another woman “blackballed” after complaining about harassment—and because her supervisor validated this concern by telling her it would be worse for her if she complained to anyone over him.  Under these circumstances, found the court, her failure to follow Farm Bureau’s policy regarding reporting sexual harassment may be reasonable and thus her claim could proceed.

the point

Employers often count on being able to defeat a claim if they have a strong policy in place regarding reporting sexual harassment and an employee does not follow it. But employers must be careful—if an employee can show that making such a report would be essentially useless (or even harmful), the employer may not be able to avail itself of this defense.