Sexual Harassment Victims and the 'Reasonableness' Equation

Occasionally, courts have carefully scrutinized whether the employee complained in a timely manner, or provided sufficient information to the employer to investigate the allegations adequately. For example, in the case of Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1290 (11^th Cir. 2003), the court held that a nearly three-month delay by an employee in reporting sexual harassment was not exercising reasonable care. Likewise, courts have recognized that employers are not required to be mind-readers. While an alleged victim of sexual harassment is not required to use magic words, a general complaint about a certain policy is not always sufficient to place an employer on notice that it should do something. See, e.g., Webb v. R & B Holding Co., Inc., 992 F. Supp. 1382, 1389 (S.D. Fla. 1998); Gage v. Metropolitan Water Reclamation Dist. of G. Chicago, 2004 WL 1899902, *16, n.15 (N.D. Ill. Aug. 17, 2004) (an employee's comments made to supervisor 'off the record at lunch,' when the employee was 'vent[ing],' were informal conversations that would not provide the employer with knowledge of discriminatory conduct).

There have similarly been cases in which courts have given some deference to employers that heed an employee's expressed request that no action be taken upon his or her report of harassment. For example, in Torres v. Pisano, and more recently in Hardage v. CBS Broadcasting Inc., those courts recognized that in some instances employees may have made an informed and sincere decision in requesting that their concerns about harassment remain confidential or that any remedial action as to their 'complaint' be delayed or avoided altogether. Torres, 116 F.3d 625, 638 (2^d Cir.), cert. denied, 522 U.S. 997 (1997); Hardage, 427 F.3d 1177, 1186 (9^th Cir. 2005), op. amended, 433 F.3d 672 (9^th Cir., Jan. 6, 2006) and 436 F.3d 1050 (9^th Cir., Feb. 8, 2006), cert. denied, 127 S.Ct. 55 (Oct. 2, 2006).

While this approach would not serve as an ideal model of a 'reasonable' employer's response, it acknowledges that employers often face conflicts striking a balance between adhering to an employee's stated wishes and complying with its obligations under the law.

The Employee's 'Half' Garners Attention

In a recent decision by the Eleventh Circuit Court of Appeals, Baldwin v. Blue Cross/Blue Shield of Alabama, 2007 WL 805528, '- F.3d '-, (11^th Cir., March 19, 2007), the court noted that alleged victims of sexual harassment face their own conflicts. In Baldwin, the court turned its attention to the employee's 'half' of the affirmative defense equation after concluding that the employer itself had satisfied its obligations to act reasonably in the face of a sexual harassment complaint.

Factual Background

The plaintiff, Susan Baldwin, worked for Blue Cross as a marketing representative and began to have problems dealing with another marketing representative, Scott Head, upon his promotion to district manager when he became her immediate supervisor. Baldwin was the only female marketing representative in the company's Huntsville, AL, office at that time. While Baldwin felt that Head made several inappropriate comments and engaged in profanity, she did not feel particularly threatened or targeted by his boorish behavior.

It was not until after they attended a company banquet in Birmingham eight months later that Baldwin felt Head had sexually propositioned her, both during and after the conference and a few days later in Head's office. Baldwin had also concluded that Head was not mentally stable and exhibited physically threatening tendencies. Baldwin did not report her concerns or fears about Head to any 'higher-up' or to anyone in the company's human resources department. Baldwin's relationship with Head deteriorated, and his use of profanity and offensive language became commonplace. Baldwin grew increasingly uncomfortable as Head greeted her with vulgar behavior such as unzipping his pants and breathing down her neck. Some of Baldwin's coworkers exhibited similarly crude behavior.

Blue Cross had a comprehensive anti-harassment policy of which Baldwin was aware, and received periodic training, regarding that policy and its procedures. Baldwin merely chose not to follow them ' at least for the time being ' citing 'career' concerns. Instead, she adopted and followed the mantra, 'just go along to get along.' It was only after a dispute with Head over a bonus check that Baldwin began to rethink her strategy. Yet, Baldwin allowed another month and a half to pass before she filed an internal complaint against Head.

The Complaint and the Response

Two more prospective client disputes, a veiled 'counseling' session by Head for Baldwin's own alleged inappropriate behavior (and 'unapproachable' attitude), and a 'pacifying' lunch with Head to see if Baldwin was 'ok' despite his assignment of a client to another representative, also passed. Baldwin finally complained to the human resources department and submitted a five-page written synopsis of events that had transpired between Baldwin and Head during the past year.

The company conducted an investigation, interviewing Head and three other witnesses. The vice president of human resources had personally interviewed Head, and in that process, warned him that he could be subjected to discipline, up to and including termination, if the conduct was proven to be true. The company received negligible corroboration of Baldwin's allegations. Two days later, Baldwin was advised that her complaint could not be corroborated. Baldwin demanded that Head be fired. Blue Cross offered to enlist an industrial psychologist to assist and monitor the interactions between Baldwin and Head in the future. Baldwin rejected that proposal, as well as an offer by the vice president of sales for Baldwin to transfer to the Birmingham office. These options were presented to, and rejected by, Baldwin, on more than one occasion. The company demanded Baldwin's resignation, in exchange for a more generous severance package, which Baldwin also refused, and her employment was terminated.

What's the Point?

Baldwin sued Blue Cross for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et. seq., in addition to asserting several tort claims under state common law. The district court granted summary judgment in favor of Blue Cross on all of Baldwin's claims. In affirming the district court's judgment for Blue Cross, the Eleventh Circuit explored the employee's 'half' of the Faragher-Ellerth affirmative defense, addressing some issues as a matter of first impression.

The court aptly noted that 'an employee's failure to take advantage of preventive or corrective measures can take two forms ' not using the procedures in place to report promptly any harassment and not taking advantage of any reasonable corrective measures the employer offers after the harassment is reported.' Baldwin, 2007 WL 805528 at * 16.

Employee's Duty to Act Reasonably

The Eleventh Circuit determined that Baldwin acted unreasonably on both accounts: She waited too long to complain, and she failed to take advantage of reasonable corrective measures offered by Blue Cross. The court cited Baldwin's refusal and inflexibility to cooperate and work with Blue Cross to reach a resolution. As to Baldwin's reporting obligations, the court noted that an unreasonable delay defies the purpose behind Title VII: 'to stop sexual harassment before it reaches the severe or pervasive stage that amounts to discrimination that violates Title VII … For that plan to work, employees must report harassment promptly.'

This falls in step with the U.S. Supreme Court's recognition of an employee's duty to use reasonable means to avoid or minimize harm in the workplace. See Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2354 (2004).

The Employee's Choice

In Baldwin's case, waiting three months before reporting that her supervisor allegedly propositioned her was anything but 'prompt, early, or soon.' Id. at *17. The court was sympathetic to the plight of sexual harassment victims, recognizing that reporting such conduct could be 'uncomfortable, scary or both.' Id. However, as in Baldwin, courts have consistently rejected as a 'valid excuse' an employee's generalized fear of retaliation or non-descript career concerns. See, e.g., Howard v. City of Robertsdale, 168 Fed. Appx. 883, 888 (11^th Cir. 2006).

The Baldwin court astutely recognized that every employee could claim the fear of losing his or her job or damaging career prospects as the basis for delaying a complaint of harassment. Employees in this position face a difficult predicament but must make a choice. They must either 'assist in the prevention of harassment by promptly reporting it to the employer, or lose the opportunity to successfully prosecute a Title VII claim based on the harassment.' Baldwin, 2007 WL 805528 at
*17. The court further reiterated that even when an employee chooses to come forward with a complaint, that does not mean the employee also gets to choose the remedy. Baldwin serves as a prime example. She insisted that Head be fired, and refused to accept anything less as a resolution.

Thus, the Eleventh Circuit, through its decision in Baldwin, spells out what may not have been so boldly stated before. The test of 'reasonableness' in evaluating the employee's 'half' of the Fargaher-Ellerth equation does not stop upon a finding that the employee complained. Instead, the employee's obligation to cooperate and act reasonably is of a continuing nature ' measured by the totality of the circumstances. An employee cannot draw a line in the sand
and refuse to meet the employer somewhere in the middle. Baldwin did just that, and her Title VII lawsuit suffered the consequences.

Conclusion

Employers: Keep up the good work! While the court's decision in Baldwin does not provide employers with a license to ignore an uncooperative employee's harassment complaint, it affords a company, which is otherwise diligent in implementing and administering its preventative and corrective measures, some assurance that it is not all for nothing. Hopefully, courts will follow in line with the Eleventh Circuit's decision in Baldwin and continue to hold employees to their end of the bargain as well.

(At the time of publication, the time for filing a motion for rehearing, rehearing en banc and/or for reconsideration had not expired.)

Debra M. Leder, a member of this newsletter's Board of Editors, is a shareholder in Fort Lauderdale, FL's Akerman Senterfitt.

Employers have been ever mindful of their obligation to take complaints of sexual harassment seriously, and to act promptly and effectively to correct those problems in the workplace. The benefits of doing so can often be essential, not to mention substantial. When a supervisor is identified in a lawsuit as the alleged harasser, the employer may still avoid liability, under certain circumstances, as long as the harassment did not result in a 'tangible employment action.' To this end, most, if not all, employers are intimately familiar with the U.S. Supreme Court's Faragher and Ellerth decisions issued in 1998. Faragher v. City of Boca Raton , 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth , 524 U.S. 742 (1998). In those cases, the Court set forth the elements of the employer's affirmative defense to liability for complaints of sexual harassment. The defense is comprised of two parts. An employer cannot be held liable for sexual harassment by a supervisor (in the absence of tangible employment action) where: 1) the employer exercised reasonable care to prevent and correct any harassing behavior promptly; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher, 524 U.S. at 787; Ellerth, 524 U.S. at 765.

Court Scrutiny

During the past eight years since Faragher and Ellerth, employers have faced the brunt of scrutiny from courts evaluating the application of this affirmative defense. Emphasis has been seemingly lopsided as to whether employers have acted reasonably under the circumstances in response to complaints of sexual harassment. Employees have regularly engaged in 'Monday morning quarterbacking' by second-guessing the appropriateness and comprehensiveness of an employer's anti-harassment policy, procedures and response to reports of harassment. Yet, it has been almost a foregone conclusion that if an employee lodged a complaint under the employer's anti-harassment policy, that employee satisfied his or her concomitant obligation to act reasonably.

Occasionally, courts have carefully scrutinized whether the employee complained in a timely manner, or provided sufficient information to the employer to investigate the allegations adequately. For example, in the case of Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1290 (11 th Cir. 2003), the court held that a nearly three-month delay by an employee in reporting sexual harassment was not exercising reasonable care. Likewise, courts have recognized that employers are not required to be mind-readers. While an alleged victim of sexual harassment is not required to use magic words, a general complaint about a certain policy is not always sufficient to place an employer on notice that it should do something. See, e.g., Webb v. R & B Holding Co., Inc. , 992 F. Supp. 1382, 1389 (S.D. Fla. 1998); Gage v. Metropolitan Water Reclamation Dist. of G. Chicago, 2004 WL 1899902, *16, n.15 (N.D. Ill. Aug. 17, 2004) (an employee's comments made to supervisor 'off the record at lunch,' when the employee was 'vent[ing],' were informal conversations that would not provide the employer with knowledge of discriminatory conduct).

There have similarly been cases in which courts have given some deference to employers that heed an employee's expressed request that no action be taken upon his or her report of harassment. For example, in Torres v. Pisano, and more recently in Hardage v. CBS Broadcasting Inc., those courts recognized that in some instances employees may have made an informed and sincere decision in requesting that their concerns about harassment remain confidential or that any remedial action as to their 'complaint' be delayed or avoided altogether. Torres , 116 F.3d 625, 638 (2 d Cir.), cert. denied , 522 U.S. 997 (1997); Hardage , 427 F.3d 1177, 1186 (9 th Cir. 2005), op. amended, 433 F.3d 672 (9 th Cir., Jan. 6, 2006) and 436 F.3d 1050 (9 th Cir., Feb. 8, 2006), cert. denied , 127 S.Ct. 55 (Oct. 2, 2006).

While this approach would not serve as an ideal model of a 'reasonable' employer's response, it acknowledges that employers often face conflicts striking a balance between adhering to an employee's stated wishes and complying with its obligations under the law.

The Employee's 'Half' Garners Attention

In a recent decision by the Eleventh Circuit Court of Appeals, Baldwin v. Blue Cross/Blue Shield of Alabama, 2007 WL 805528, '- F.3d '-, (11^th Cir., March 19, 2007), the court noted that alleged victims of sexual harassment face their own conflicts. In Baldwin, the court turned its attention to the employee's 'half' of the affirmative defense equation after concluding that the employer itself had satisfied its obligations to act reasonably in the face of a sexual harassment complaint.

Factual Background

The plaintiff, Susan Baldwin, worked for Blue Cross as a marketing representative and began to have problems dealing with another marketing representative, Scott Head, upon his promotion to district manager when he became her immediate supervisor. Baldwin was the only female marketing representative in the company's Huntsville, AL, office at that time. While Baldwin felt that Head made several inappropriate comments and engaged in profanity, she did not feel particularly threatened or targeted by his boorish behavior.

It was not until after they attended a company banquet in Birmingham eight months later that Baldwin felt Head had sexually propositioned her, both during and after the conference and a few days later in Head's office. Baldwin had also concluded that Head was not mentally stable and exhibited physically threatening tendencies. Baldwin did not report her concerns or fears about Head to any 'higher-up' or to anyone in the company's human resources department. Baldwin's relationship with Head deteriorated, and his use of profanity and offensive language became commonplace. Baldwin grew increasingly uncomfortable as Head greeted her with vulgar behavior such as unzipping his pants and breathing down her neck. Some of Baldwin's coworkers exhibited similarly crude behavior.

Blue Cross had a comprehensive anti-harassment policy of which Baldwin was aware, and received periodic training, regarding that policy and its procedures. Baldwin merely chose not to follow them ' at least for the time being ' citing 'career' concerns. Instead, she adopted and followed the mantra, 'just go along to get along.' It was only after a dispute with Head over a bonus check that Baldwin began to rethink her strategy. Yet, Baldwin allowed another month and a half to pass before she filed an internal complaint against Head.

The Complaint and the Response

Two more prospective client disputes, a veiled 'counseling' session by Head for Baldwin's own alleged inappropriate behavior (and 'unapproachable' attitude), and a 'pacifying' lunch with Head to see if Baldwin was 'ok' despite his assignment of a client to another representative, also passed. Baldwin finally complained to the human resources department and submitted a five-page written synopsis of events that had transpired between Baldwin and Head during the past year.

The company conducted an investigation, interviewing Head and three other witnesses. The vice president of human resources had personally interviewed Head, and in that process, warned him that he could be subjected to discipline, up to and including termination, if the conduct was proven to be true. The company received negligible corroboration of Baldwin's allegations. Two days later, Baldwin was advised that her complaint could not be corroborated. Baldwin demanded that Head be fired. Blue Cross offered to enlist an industrial psychologist to assist and monitor the interactions between Baldwin and Head in the future. Baldwin rejected that proposal, as well as an offer by the vice president of sales for Baldwin to transfer to the Birmingham office. These options were presented to, and rejected by, Baldwin, on more than one occasion. The company demanded Baldwin's resignation, in exchange for a more generous severance package, which Baldwin also refused, and her employment was terminated.

What's the Point?

Baldwin sued Blue Cross for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et. seq., in addition to asserting several tort claims under state common law. The district court granted summary judgment in favor of Blue Cross on all of Baldwin's claims. In affirming the district court's judgment for Blue Cross, the Eleventh Circuit explored the employee's 'half' of the Faragher-Ellerth affirmative defense, addressing some issues as a matter of first impression.

The court aptly noted that 'an employee's failure to take advantage of preventive or corrective measures can take two forms ' not using the procedures in place to report promptly any harassment and not taking advantage of any reasonable corrective measures the employer offers after the harassment is reported.' Baldwin, 2007 WL 805528 at * 16.

Employee's Duty to Act Reasonably

The Eleventh Circuit determined that Baldwin acted unreasonably on both accounts: She waited too long to complain, and she failed to take advantage of reasonable corrective measures offered by Blue Cross. The court cited Baldwin's refusal and inflexibility to cooperate and work with Blue Cross to reach a resolution. As to Baldwin's reporting obligations, the court noted that an unreasonable delay defies the purpose behind Title VII: 'to stop sexual harassment before it reaches the severe or pervasive stage that amounts to discrimination that violates Title VII … For that plan to work, employees must report harassment promptly.'

This falls in step with the U.S. Supreme Court's recognition of an employee's duty to use reasonable means to avoid or minimize harm in the workplace. See Pennsylvania State Police v. Suders , 124 S.Ct. 2342, 2354 (2004).

The Employee's Choice

In Baldwin's case, waiting three months before reporting that her supervisor allegedly propositioned her was anything but 'prompt, early, or soon.' Id. at *17. The court was sympathetic to the plight of sexual harassment victims, recognizing that reporting such conduct could be 'uncomfortable, scary or both.' Id. However, as in Baldwin, courts have consistently rejected as a 'valid excuse' an employee's generalized fear of retaliation or non-descript career concerns. See, e.g., Howard v. City of Robertsdale , 168 Fed. Appx. 883, 888 (11 th Cir. 2006).

The Baldwin court astutely recognized that every employee could claim the fear of losing his or her job or damaging career prospects as the basis for delaying a complaint of harassment. Employees in this position face a difficult predicament but must make a choice. They must either 'assist in the prevention of harassment by promptly reporting it to the employer, or lose the opportunity to successfully prosecute a Title VII claim based on the harassment.' Baldwin, 2007 WL 805528 at
*17. The court further reiterated that even when an employee chooses to come forward with a complaint, that does not mean the employee also gets to choose the remedy. Baldwin serves as a prime example. She insisted that Head be fired, and refused to accept anything less as a resolution.

Thus, the Eleventh Circuit, through its decision in Baldwin, spells out what may not have been so boldly stated before. The test of 'reasonableness' in evaluating the employee's 'half' of the Fargaher-Ellerth equation does not stop upon a finding that the employee complained. Instead, the employee's obligation to cooperate and act reasonably is of a continuing nature ' measured by the totality of the circumstances. An employee cannot draw a line in the sand
and refuse to meet the employer somewhere in the middle. Baldwin did just that, and her Title VII lawsuit suffered the consequences.

Conclusion

Employers: Keep up the good work! While the court's decision in Baldwin does not provide employers with a license to ignore an uncooperative employee's harassment complaint, it affords a company, which is otherwise diligent in implementing and administering its preventative and corrective measures, some assurance that it is not all for nothing. Hopefully, courts will follow in line with the Eleventh Circuit's decision in Baldwin and continue to hold employees to their end of the bargain as well.

(At the time of publication, the time for filing a motion for rehearing, rehearing en banc and/or for reconsideration had not expired.)

Debra M. Leder, a member of this newsletter's Board of Editors, is a shareholder in Fort Lauderdale, FL's Akerman Senterfitt.