Employees who feel that they are being Subjected to a Hostile Work Environment Must Take Advantage of the EEO Procedures Implemented by Employer
We recently litigated a hostile work environment claim raised by a female employee against her South Florida employer. One of the principal issues in the lawsuit was not whether the employee had been subjected to a hostile work environment, but whether or not she had taken advantage of the anti-harassment procedures implemented by her employer. In the case, the employee filed a lawsuit against her employer under Title VII of the Civil Rights Act of 1964 alleging that she had been subjected to racial and sexual harassment, which created a hostile work environment.
Specifically, in the complaint, the employee claimed that she had been the subject of sexually and racially harassing remarks during her employment. The employer, however, contended that it was unaware of the hostile work environment because the employee never made any complaints to management or to the Human Resources Department about the sexually and racially harassing remarks. The employer had previously published an Employee Handbook that contained specific procedures that needed to be followed in the event that any employee was faced with harassment or a hostile work environment. The Employee Handbook provided that anyone who felt that they were the subject of discrimination or harassment must report the incidents to management or to the Human Resources Department.
Under the law, an employer can effectively defend a hostile work environment claim by showing that (1) it exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the employee unreasonably failed to take advantage of the corrective opportunities provided by the employer. This legal doctrine was first announced by the U.S. Supreme Court in the cases of Faragher v. City of Boca Raton, 524 U.S. 775, 8071998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Under the doctrine, if an employer shows that it promulgated and disseminated a procedure to be used by employees in the event that they are subjected to harassment, and the plaintiff failed to use the anti-harassment procedure, then the employer will not be held vicariously liable even if a hostile work environment was found to have existed. This would apply only if the employee did not suffer an adverse employment action, i.e., was demoted or discharged.
In the case that we litigated, the facts showed that the employee had not followed any of the procedures outlined in the Employee Handbook. She did not raise any hostile work environment complaints with any management employee or the Human Resources Department. There were no reports of sexual or racial harassment. The employer had no opportunity to investigation and resolve any of the claims. The inference was that abusive events claimed by the employee may not have occurred. The case turned on this fact. Therefore, to the extent that an employer promulgates and disseminates an Employee Manual that contains EEO procedures, employees must avail themselves of these procedures. However, if after availing themselves of the procedures, the company fails to take corrective action, the employer may nevertheless be held liable for a hostile work environment.
