Report of “Horrific” Conduct, without More, Was Unreasonable Failure to Complain

By Bill Wright

In the absence of a tangible employment action, employers may raise a Faragher-Ellerth defense to a claim of sex harassment. In a recent case, the employer obtained summary judgment on the defense because the alleged victim of harassment refused to tell the employer’s investigators any details about the harassment. The victim told Human Resources that her supervisor had done something “horrific” and when asked directly whether the harassment included a sexual advance, she nodded. Other than that, she refused to provide any details. The employer investigated anyway, interviewing the alleged harasser and other possible witnesses, without discovering any facts about the alleged harassment.

When the lawsuit came, the court granted the employer summary judgment because of the plaintiff’s unreasonable failure to use the employer’s complaint procedure. Stephanie Crockett v. Mission Hospital, Inc., No. 12-1910, (4th Cir. May 30, 2013). Even the best investigators need something more to go on than “horrific”, and apparently a wink and a nod isn’t that “something more”, at least in the Fourth Circuit Court of Appeals.

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