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Be Sure to Use Employer's Procedures for Sexual Harassment Investigations Before Bringing Suit

If you have been sexually harassed at work, lost your job, and you want to start a lawsuit to enforce your rights under Title VII, it is extremely important for you to show that you used your employer's procedures for dealing with complaints, and that you cooperated with HR in pursuing your options. Failure to do so can ruin your case.

A case decided by a Federal Court in Alabama illustrates this rule. Rhonda Simpson was hired in 2002 to work at a Big Lots store somewhere in Alabama, after W.C. Collingsworth, a manager there, saw her at a fast food restaurant and thought she looked like Farrah Fawcett. She went to work at Big Lots, starting as a cashier, and working her way up to Assistant Manager. For most of the time she was there, she did not report to Collingsworth, but that didn't stop him from being extremely crude and disgusting on a regular basis.

According to Simpson's deposition testimony, Collingsworth attempted to kiss her, touched her often, and told her that "her tits are looking good today" at least ten or fifteen times over the ten years she worked at Big Lots. She also claimed that he told stories "about his hard-on and screwing some lady in a car", and saw an employee on her knees and remarked that he liked his women that way. He told dirty jokes in her presence using the words "whore" and "slut, and made such inappropriate comments only to women.

Simpson did admit, however, that she would report each incident to a supervisor, who would then arrange a meeting with Collingsworth. She said that his behavior would improve for a couple of weeks at a time after those meetings. Simpson also contacted Big Lots' employee hotline in 2006 concerning the sexual harassment, although she was more concerned about her co-workers than herself. There was an investigation, but she did not participate in it.

Simpson also claimed that she had complained to her boss, and in response the manager brought a district manager in to conduct another investigation. However, when the district manager was on site, Simpson was on medical leave and did not contact him. To make matters worse, Ms. Simpson advised a female co-worker, who had a notebook documenting Collingsworth's alleged harassment, not to share her notebook with the district manager.

Simpson was later injured on the job, and was administratively terminated for failing to return from a leave of absence. The termination was not connected to her sexual harassment complaints. She then brought a lawsuit for sexual harassment.

The lower court threw out her case, and the appeals court affirmed the lower court ruling. The federal court based its decision on a U.S. Supreme Court case which ruled that an employer will not be liable for harassment by a supervisor under Title VII if the harassment does not result in a "tangible job detriment," and (1) the employer has effective measures in place to prevent harassment and correct it if it occurs, and (2) the employee unreasonably fails to make use of the employer's remedial measures.

The court found that although Collingsworth's behavior was probably sexually harassing, it threw out the case because Big Lots had both a policy prohibiting workplace harassment and an effective mechanism for making complaints. The court also found that the company had conducted "reasonable" follow-up on Simpson's complaints. Finally, the court found that Simpson had failed to avail herself of the employer's remedial measures by failing to present herself for interviews during the two investigations and instructing her co-worker not to provide her notes to the investigator.

The takeaway: If you have been sexually harassed in the workplace, be sure to inform HR and to cooperate with their investigation. It is vitally important to use the employer's internal procedures for dealing with sexual harassment before starting a lawsuit. If that get you nowhere, than you can pursue your legal remedies.

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