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Employers take note: employees do not have to complain about sexual harassment to the personnel or human resources department to put the organization on notice of a problem. According to a recent decision by the Seventh Circuit Court of Appeals in Young v. Bayer Corp., No. 96-3700, 9/5/97, an employee’s complaints to her department head of sexual harassment by her foreman put the company on notice of the sexual harassment. The Seventh Circuit sent the case back to the lower court for further consideration of whether Bayer was negligent in failing to act promptly to the complaint of sexual harassment under Title VII of the Civil Rights Act of 1964. Between the middle of 1989 and December 1992, the employee complained to her department head at least five times that her foreman was sexually harassing her. The department head talked to the foreman about the employee’s complaints, but did not report the complaints to the plant’s personnel director. The harassment continued, and the employee complained to another supervisory employee in December 1992 who reported the complaint to the personnel director. According to the Seventh Circuit’s decision, the facts of the case showed that the personnel director acted promptly and responsibly when finally notified of the complaint. However, the court determined that there is still a question that must be resolved whether Bayer was negligent for not acting on the complaints of sexual harassment prior to the personnel director’s involvement in December 1992. The court specifically addressed the issue of when an organization is notified of a sexual harassment complaint and, therefore, must take action to address the complaint. It determined that if an organization does not have a "clearly marked, accessible, and adequate channel for complaints," an employee may still put the company on notice by complaining to a person the employee reasonably believed was authorized to receive and forward, or respond to, a complaint of harassment. In this case, Bayer had an internal process for harassment complaints which offered four authorized channels for lodging complaints, including complaining to her department head. The court rejected Bayer’s argument that department heads were "too far down the corporate ladder" to count as receiving notice. Since Bayer authorized its employees to complain to their department heads, it must have believed that the department heads would resolve the complaints or refer them to someone who could respond effectively. This case clearly demonstrates the importance of an effective response mechanism for sexual harassment complaints. To be effective, the response mechanism should include: (1) clearly defined channels for reporting sexual harassment complaints; (2) training for all supervisory employees on how to respond to complaints, including reporting them to the personnel or human resources department; and (3) procedures for acting on complaints of sexual harassment promptly. The Seventh Circuit’s opinion indicates that if Bayer’s department head, who initially received the complaints, had referred the problem immediately to the personnel director, there may not have been a question of negligence by the employer since the personnel director responded effectively. For further information on dealing with complaints of sexual or other forms of harassment, see Productive Work Environment, Chapter 201A. The Editors’ responses in the HR AnswerlineSM and this newsletter are not intended as legal advice. Subscribers are encouraged to seek appropriate legal and other professional advice.
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