Employers con harassment victims by means of a “see no evil, hear no evil” policy.

By Bryan A. Chapman, Esquire

Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace.  As a result, some employers have adopted a “see no evil, hear no evil” strategy.

Management may be fully aware that sexual harassment (or some other type of workplace harassment) is occurring, but deliberately pretend that is is not occurring in order to avoid liability. Management may discourage a victim of sexual harassment from complaining. The victim’s complaint of harassment may be ignored or discarded by management. If the victim continues to complaint, management may seek to discredit the victim by papering their personnel file with allegations of poor job performance and misconduct, which may lead to termination.  Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.’” 830 F.2d at 558 (quoting Katz) (emphasis added).  Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)

“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003)  “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

Therefore, victims of workplace sexual harassment (or any other kind of workplace harassment) should document each incident of harassment in real time.  Documentation can be evidence of sexual harassment.  Victims of workplace sexual harassment should seek corroboration from witnesses and other victims of sexual harassment; there is strength in numbers. A victim of sexual harassment should review their employer’s sexual harassment policy and follow the procedure. Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC). A victim should put their complaint in writing and keep a copy. Sending a copy of the harassment complaint to the employer, by email, can create an indelible record.

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