Rarely, futility and fear of retaliation excuse an employee from complaining about harassment. Here’s one.


When a plaintiff sues, alleging a supervisor subjected them to a hostile work environment, the defendant may avoid liability — even if the harassment actually occurred — if it took prompt remedial action to protect the plaintiff. Also, if a plaintiff fails to take advantage of corrective opportunities the defendant provides, the defendant wins.

But not always.

If an employee who has already complained believes that bringing another harassment complaint would be futile, or it becomes evident that the employer has no real intention of stopping the harassment, the harassed employee need not go through the wasted motion of reporting the harassment.

Recently, the Fifth Circuit Court of Appeals faced just such a situation.

For years, the plaintiff, a Clinic employee, endured name-calling and other forms of harassment from one of the doctors. She complained but expressed some trepidation with the harasser “knowing anything about [her] talking with the administration.” Still, she asked for assistance to be transferred out of the neurology department because she did not think the harasser would “let her leave.” The executive director stated that the harasser would not be allowed to retaliate.

According to the plaintiff, the harassment did not stop, including an incident in which the harasser pushed her and almost made her fall. Plus, the harasser created an assistant position within the neurology department that the plaintiff felt compelled to take. She considered this retaliatory.

Eventually, the plaintiff brought a hostile work environment claim in federal court. The district court dismissed the action. But the appellate court disagreed with the initial outcome.

First, it appears the defendant may have failed to take prompt remedial action. Indeed,  the plaintiff stated several times —including in evidence submitted by the Clinic itself—that she was primarily concerned about “[the harasser] knowing anything about [her] talking with administration.” But, she endorsed a plan that the Clinic proposed to confront the harasser without relating the complaints back to her. Instead, the comments would be focused on a different employee’s complaints to protect current employees.

Also, the Fifth Circuit accepted that the plaintiff had a real fear of retaliation. Specifically, notwithstanding her request to transfer away from the harasser, he created a position within his department that she felt “manipulated” into accepting because she felt that the Clinic was not making an effort to help her and was otherwise sending her to interview for other positions for which she was unqualified. Therefore, bringing a direct complaint could be futile because the Clinic did not intend to stop the harassment.

If you want to avoid the jury trial that this Clinic must now face, ensure that you have an employee handbook with a proper anti-harassment policy and complaint procedure. When employees complain, take those complaints seriously, investigate, and take other prophylactic measures that are reasonably designed to end the complained-of behavior.

“Doing What’s Right – Not Just What’s Legal”
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