The Mythical Employer Sexual Harassment Defense: The Victim Must Report The Harassment

Having represented sexual harassment victims for more than two decades, our sexual harassment lawyers in Citrus County, Florida know that employers frequently proffer legal arguments in sexual harassment cases that are merely employment law myths. One employment law myth routinely proffered by employers is they cannot be held liable for hostile work environment sexual harassment unless the victim reports the harassing conduct. Having controlled the judiciary for decades, employers are supremely confident that many employer-friendly judges will decide sexual harassment cases in their favor based on this employment law myth.

In this article, our sexual harassment lawyers in Citrus County, Florida explain how the recent decision by the U.S. Sixth Circuit Court of Appeals in Schlosser v. VRHabilis, LLC, 2024 WL 3934559 (6th Cir. Aug. 26, 2024) demonstrates that employers can be held liable for hostile work environment sexual harassment even when sexual harassment victims do not report the harassment.

Notice Triggers Employer’s Remedial Obligation

Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from sex discrimination. Under well-established law, sexual harassment is a form of sex discrimination prohibited by Title VII. As the U.S. Supreme Court in Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) ruled, employees are not required to run a “gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.” To violate Title VII, sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment.

As a prerequisite for holding an employer liable for hostile work environment sexual harassment, an employee must prove that the employer knew or should have known of the harassment. As explained by the court in Fuller v. City of Oakland, Cal., 47 F.3d 1522 (9th Cir. 1995), “once an employer knows or should know of harassment, a remedial obligation kicks in.” Under Title VII, the employer is obligated to take prompt and effective remedial action to stop the harassment and prevent the harassment from recuring. If the employer knew or should have known of the harassment and takes no remedial action or the remedial action taken does not prevent recurrence of the harassment, then the employer is liable under Title VII for creating and maintaining a sexually hostile work environment.

An employee can establish that an employer had actual knowledge of the harassment by showing that she reported the harassment in compliance with the employer’s complaint procedure for reporting sexual harassment. An employee can establish that an employer had constructive knowledge by showing that the harassment was so pervasive that the employer should have known of the harassment. In most cases, constructive knowledge is established by showing that the harassment occurred in the presence of a supervisor or manager who did nothing to stop the behavior. Thus, as the court in Conetta v. National Hair Care Centers, Inc., 236 F.3d 67 (1st Cir. 2001) observed, “the employer’s liability may turn on showing that the harassment was drawn to the attention of a supervisor or management official who then did nothing to prevent recurrence.” Indeed, courts have determined that evidence that a supervisor or manager knew of the harassment suffices to establish constructive knowledge.

Hostile Work Environment Lawsuit

In Schlosser, a woman named Schlosser asserted a hostile work environment harassment claim against her former employer, VRHabilis, LLC (“VRH”), pursuant to Title VII. Schlosser claims that she was harassed because of her sex or gender in violation of Title VII.

Schlosser alleges that one of the harassers was a co-worker named Aaron. Schlosser testified that Aaron repeatedly verbally abused her. On one occasion, according to Schlosser, Aaron physically pushed her and yelled at her, screaming “nobody likes you,” and calling her a sexual epithet. Schlosser also alleges that Aaron said, “you want an enemy, I’ll give you one. I’ll make your life a living hell.” Schlosser contends that while this altercation occurred, a supervisor named Bigos stood in close proximity but did nothing to stop it. Aaron complained to a manager about Schlosser, who asked Aaron and Schlosser to provide written statements. Schlosser testified that she declined to do so because she did not want to be blamed for stopping production at the job site and was already being scrutinized by VRH management. VRH did not take any subsequent action regarding this incident. Schlosser maintains that Aaron continued to harass her, including calling her sexual epithets.

After Aaron allegedly continued to abuse her, Schlosser emailed a resignation letter to VRH that detailed the harassment and discrimination she experienced during her short ten-week employment with VRH. The email discussed Aaron’s insults and harassing behavior. Schlosser stated, “my gender now feels, in itself, derogatory.” After receiving this email, VRH did not investigate Schlosser’s allegations. Instead, VRH leadership expressed relief at Schlosser’s resignation.

Supervisor’s Presence Shows Knowledge

After a four-day trial, a jury found that Schlosser proved by a preponderance of the evidence that VRH subjected her to a hostile work environment on the basis of her sex or gender. On appeal, VRH argued that the evidence could not support the jury’s verdict in favor of Schlosser because Schlosser failed to report Aaron’s alleged harassment. Thus, VRH maintained that it could not be held liable for Aaron’s harassment because Schlosser never reported Aaron’s harassment. The U.S. Sixth Circuit Court of Appeals disagreed and upheld the jury’s verdict in favor of Schlosser.

In affirming the jury’s verdict, the Sixth Circuit observed that VRH “attempts to skirt liability for [Aaron’s] actions by arguing that Schlosser refused to report the harassment or provide a written statement regarding the second incident in which [Aaron] screamed profanities at Schlosser, including calling Schlosser a [sexual epithet].” “This may be true,” the appellate court explained, “but it is not dispositive for the employer-notice inquiry, which asks whether VRH knew about the harassment.” “VRH, the court of appeals pointed out, “fails to provide any argument to counter the fact that Schlosser’s supervisor, Bigos, was present for all three incidents and declined to take any action to stop the harassment, much less bring the harassment to the attention of Human Resources.” Thus, “throughout each described incident of sexual harassment, Bigos knew of the charged sexual harassment but failed to take any corrective action at all.” Consequently, the Sixth Circuit concluded that “a reasonable jury could find that Bigos knew of the harassment and made no attempt to correct the problem of the sexually harassing behavior, thus establishing the require negligence on VRH’s part.”

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment lawyers in Citrus County, Florida have fought for the rights of sexual harassment victims for more than twenty years. If you have experienced sexual harassment at work or have questions about your rights as a sexual harassment victim, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.