What Constitutes A Sexual Harassment Complaint?
When making a complaint about unwanted sexually harassing behavior, it is critical that the victim provide the employer with sufficient information to reasonably notify the employer that a sexual harassment complaint has been lodged. A complaint that is not sufficiently detailed or clear enough to notify the employer that the victim is making a sexual harassment complaint does not put the employer on notice of the sexual harassment or trigger the employer’s duty to take remedial action to stop the harassment.
Content of Sexual Harassment Complaint
As observed by the U.S. Seventh Circuit Court of Appeals in Gentry v. Export Packaging Co., 238 F.3d 842 (7th Cir. 2001), “there is no legal mandate that an employee use the specific term ‘sexual harassment’ in order to inform his or her employer about a harasser in the workplace.” As the Gentry court reasoned, “[s]ome employees may not be conversant or comfortable with the term and [courts] should not place a specific language requirement on an employee when he or she is already presumably facing a difficult situation.” However, as explained by the Seventh Circuit in Cooper-Schut v. Visteon Automotive Systems, 361 F.3d 421 (7th Cir. 2004), “[w]hen an employee reports harassment to her employer, the employee must give the employer enough information to make a reasonable employer think that there was some probability that she was being sexually harassed.” When a victim’s complaint refers to sexual remarks, sexual jokes, sexual propositions, or touching in the workplace, courts will generally find the complaint constitutes a sexual harassment complaint because the victim has given the employer sufficient information to put the employer on notice and trigger the employer’s duty to take remedial action to stop the harassment.
Adequate Complaint Necessary For Protection From Retaliation
The content of a sexual harassment complaint is also critical to triggering protection against retaliation. Under Title VII of the Civil Rights Act of 1964, which is federal law, and the Florida Civil Rights Act, which is Florida law, an employee is protected against retaliation for complaining about sexual harassment. This means that an employer cannot subject the employee to an adverse employment action, such as demotion, reduction in hours, or termination, in retaliation for making a sexual harassment complaint. However, if an employer does not that the employee was in fact complaining about sexual harassment, the employer logically cannot retaliate against the employee for a complaint that was never made. To fall within the scope of protection against retaliation, a complaint must provide the employer with enough information for a reasonable employer to understand that the complaint is a complaint about sexual harassment. Absent such a sufficiently detailed and clear complaint, an employer will maintain that any adverse taken against the employee for allegedly complaining about sexual harassment was not unlawfully prohibited retaliation because the employee’s complaint did not constitute a sexual harassment complaint.
Content of Sexual Harassment Complaint:
The significance of the type and extent of information that must be given to an employer to constitute a sexual harassment complaint and put the employer on notice of sexual harassment is illustrated in Crockett v. Mission Hospital, Inc., 717 F.3d 348 (4th Cir. 2013). In that case, Stephanie Crockett (Crockett) claimed that she was subjected to hostile work environment sexual harassment by her supervisor, Harry Kemp (Kemp). The alleged sexual harassment involved an incident where Kemp instructed Crockett to lift her shirt, repeatedly asked Crockett for a kiss, and kissed Crockett’s right cheek. About one week later, Kemp notified the Human Resources Department that Crockett had continued to misuse her cell phone and Crockett had “flashed” him with her shirt in order to persuade him not to report the misuse. In response to these accusations, Crockett told the Human Resources Department that Kemp had done something “horrific.” However, Crockett refused to elaborate, stating that her attorney had advised her not to do so. Crockett also did not tell anyone in management about the incident. About one week later, Crockett again met with Human Resources officials and was asked if the incident involved Kemp making sexual advances. Crockett nodded yes. However, Crockett would not provide any details about the incident. During the meeting Crockett was given a copy of the employer’s sexual harassment policy and advised of the process for reporting a claim of harassment. Crocket did not file a formal sexual harassment complaint. Although Crockett never provided any details about the “horrific” incident or file a formal complaint of sexual harassment, the Human Resources Department interviewed at least five of Crockett’s co-workers to see if anyone witnessed or heard about the alleged “horrific” incident. None of the co-workers had seen or heard about any such incident.
During the litigation, Crockett argued that the employer failed to promptly correct Kemp’s sexually harassing behavior because it never investigated her allegation that Kemp had done something “horrific” to her. In rejecting Crockett’s argument, the U.S. Fourth Circuit Court of Appeals found that the employer did investigate Crockett’s allegation despite being “handicapped” by her refusal to cooperate and give [the employer] some clue as to her complaint.” The court reasoned that since Crockett refused to provide any information regarding Kemp’s alleged behavior, the employer’s attempts to investigate her claim were unsuccessful. Thus, the court concluded that Crockett unreasonably failed to take advantage of corrective opportunities afforded to her and dismissed her sexual harassment claim.
The Crockett case illustrates that a victim’s complaint about sexual harassment must give the employer sufficient information about the behavior to put the employer on notice that he or she wants the employer to intervene and stop the harassment. In the Crockett case, the Fourth Circuit found that the information given by Crockett to the Human Resources Department was not sufficiently detailed and clear to notify the employer that she was making a sexual harassment complaint. Because Crockett’s complaint was not sufficiently detailed and clear enough to constitute a sexual harassment complaint, her complaint did not provide the employer with notice of Kemp’s sexually harassing behavior or trigger the employer’s duty to take remedial action. As the Seventh Circuit in McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. 2004) explained, “an employer cannot be considered to have knowledge of sexual harassment unless the employee makes a concerted effort to inform the employer that a problem exists.”
Consultation With Employment Law Attorney
We have extensive experience protecting and vindicating the rights of sexual harassment victims. If you have been the victim of sexual harassment, or have questions about making a sexual harassment complaint, please contact our office for a free consultation. We take sexual harassment 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.
