In 1998, the United States Supreme Court issued two decisions that made it much more difficult for individuals to claim that employers should be liable for sexual harassment engaged in by managers. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998). Under the Ellerth-Faragher defense, an employer can escape liability for sexual harassment if it proves that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the victim of that harassment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. In other words, if an employer can prove that it has a sexual harassment policy and that the employee failed to report harassment under the policy, the employer will not be liable for the sexual harassment.
These principles were recently applied by a federal court of appeals in the case involving Elizabeth Howard, the former secretary for Police Chief Allen Lassiter of Robertsdale, Alabama. It was undisputed that for a three-year period of time, Lassiter engaged in physical and psychological sexual harassment of Howard. Howard endured Lassiter’s conduct for nearly three years without reporting it.
The City had in place a sexual harassment policy that stated a commitment to a bias-free workplace. The policy invited employees who believed they were the victims of harassment to immediately contact their supervisor, the City’s Personnel Department and/or the Mayor.
When a trial court dismissed Howard’s lawsuit for sexual harassment on the grounds that she did not avail herself of the City’s policy, Howard appealed. The federal Eleventh Circuit Court of Appeals upheld the dismissal of the lawsuit.
Howard argued that her nearly three-year delay in reporting Lassiter’s harassment was reasonable because both she and other police personnel were scared of Lassiter’s violent nature, and she feared retaliation. The Court rejected this argument, holding that “absent a credible threat of retaliation, subjective fears or reprisal do not excuse the failure to report alleged harassment. Conclusory allegations of feared repercussions are insufficient to overcome an employer’s showing of unreasonableness. Howard demonstrated only a generalized fear of retaliation, and the record offers no objective evidence to substantiate her fear. Nor does Howard explain why, after nearly three years of enduring Lassiter’s harassment, she suddenly overcame her fear and developed the courage to complain to the Mayor. As we have repeatedly stated, the problem of workplace discrimination cannot be corrected without the cooperation of the victims, notwithstanding that it may be difficult for them to make such efforts.”
Howard v. City of Robertsdale, 2006 WL 304552 (11th Cir. 2006).
This article appears in the April 2006 issue