Yes, sexual harassment plaintiff, you can shoot yourself in the foot. Here's how.

Even an air-tight case of sexual harassment can be sabotaged if (1) the employer has a policy banning it and an effective mechanism for handling complaints, and (2) the victim refuses to cooperate in the investigation.

Rhonda Simpson was hired to work at a Big Lots store somewhere in Alabama, after a manager saw her at a fast food restaurant and thought she looked like Farrah Fawcett. She went to work at Big Lots, starting as a cashier, and working her way up to Assistant Manager. For most of the time she was there, she did not report to the manager who recruited her initially, but that didn’t stop him (allegedly) from being extremely crude and disgusting on a regular basis. (You can read it all in the court’s decision, but make sure there are no children around when you do.)

Big Lots had a policy prohibiting sexual harassment and a hotline number for employees to use to make complaints. Ms. Simpson called the hotline in 2006 and made an anonymous tip about the sleazy manager. The company sent a representative to investigate, but Ms. Simpson was not at work when he came, and because her tip was anonymous, nobody knew to contact her. Meanwhile, Ms. Simpson knew that the representative was investigating her complaint and made no effort to get in touch with him.

At the end of the investigation, even without Ms. Simpson’s help, the manager was reprimanded.

Ms. Simpson also claimed that she had complained to her boss about the manager, and in response the manager brought a district manager in to conduct another investigation. However, when the district manager was on site, Ms. Simpson was on medical leave and did not contact him. To make matters worse, Ms. Simpson advised a female co-worker, who had a notebook documenting the manager’s alleged harassment, not to share her notebook with the district manager.

Ms. Simpson was later injured on the job, and was eventually administratively terminated for failing to return from a leave of absence. (This did not appear to have any connection with her sexual harassment complaints.)

According to the U.S. Supreme Court, an employer will not be liable for harassment by a supervisor under Title VII if the harassment does not result in a “tangible job detriment,” and (1) the employer has effective measures in place to prevent harassment and correct it if it occurs, and (2) the employee unreasonably fails to make use of the employer’s remedial measures.

The federal court in Alabama granted summary judgment to Big Lots, finding that Big Lots was entitled to this Faragher/Ellerth defense. First, the court found that the manager’s conduct could very well be considered sexually harassing. However, the court found that Big Lots had both a policy prohibiting workplace harassment and an effective mechanism for making complaints. The court also found that the company had conducted "reasonable" follow-up on Ms. Simpson’s complaints.

Finally, the court found that Ms. Simpson had failed to avail herself of the employer’s remedial measures by failing to present herself for interviews during the two investigations and instructing her co-worker not to provide her notes to the investigator.

What could have been a big loss for Big Lots ended up being a big win, thanks to the store's policy and response, coupled with an uncooperative victim.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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