Failing To Complain About Workplace Sex Harassment Can Kill Your Case


By harley erbe

There's an argument that we encounter in our sexual harassment cases, every time, guaranteed. It's that the employee didn't complain enough, didn't complain about the right things, didn't complain to the right people, or didn't complain at all. We've learned from such arguments that it's absolutely imperative that employees complain often and in the correct manner about workplace sex harassment.

Failing to do complain, and instead keeping a "stiff upper lip," can negatively impact, if not completely end, a sexual harassment case if the employee later decides to pursue one. In virtually every sex harassment case the employer finds one reason, or multiple reasons, to criticize the employee's complaints or lack thereof. Those arguments can be overcome, but it's not always easy, and the better practice is to avoid such arguments by registering frequent complaints about the sex harassment in the proper manner.

From a practical standpoint, not complaining and just suing looks bad because the employee hasn't necessarily given the employer any chance to stop the harassment. That allows the defense lawyers to argue, as I've seen them do, that "________ stayed silent and gave us no idea that there was a problem until she sued us for a million dollars." It gives defense counsel an opportunity to shift the focus away from what the employer did wrong to what the employee could've done to help herself before suing.

Complaints are also important because many types of sex harassment claims require proof that the employer knew or should have known of the sexual harassment and did nothing to protect the employee. That argument's harder to make if the employee hasn't brought the issue to the employer's attention through complaints. It can still be done without the employee's complaints, but then she's relying on other proof to establish the employer's knowledge, such as arguing that other employees complained, that management employees witnessed the harassment, or that the harassment was so pervasive that the employer had to know about it by default, but that evidence isn't always available or may not be persuasive enough to win the case on its own.

Another negative impact of a lack of complaints is that courts sometimes rule that, if an employee doesn't complain, it must mean that she didn't find the conduct unwelcome, that she didn't perceive the conduct to be sexually offensive, or that the sexual harassment didn't happen at all. A finding against the employee on any of those topics can be fatal to a sexual harassment case. If an employee didn't complain about sex harassment, or didn't complain about it very often, she needs to be prepared to explain the lack of complaints.

Additionally, some types of sex harassment claims require the employee to prove that she tried to avoid further harm from the sex harassment. That generally means that the employee needs to complain, put the employer on notice of the harassment, and give the employer a chance to do something about it. Many courts rule in certain types of sex harassment cases that, if an employer has a sexual harassment complaint procedure and the employee doesn't utilize that process, the employer's immune from any liability concerning the harassment.

A few cautions to ensure that complaints about sex harassment are useful if a lawsuit later develops. First, if the employer has complaint procedure, make sure to follow it. Even if complaints are made, defense attorneys will argue that the complaints weren't good enough because they were made in the wrong manner or to the wrong people. Second, it's best if you have proof that you complained beyond just your word. Assume that your employer will dispute any verbal complaints that you claim you made. The employer will deny that the complaint was ever made or will claim that the complaint had a different substance than you say it did. To avoid that, make your complaints in an indisputable manner if possible such as by email. If a verbal complaint is unavoidable, openly, or even secretly, record your discussion with management. It's legal under Iowa to secretly record a conversation as long as you're a party to it. 

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