Despite the existence of a written policy proscribing the proper procedures for reporting sexual harassment, employers may be liable under Title VII of the 1964 Civil Rights Act if an employee makes a report to another employee who is not designated in the policy, but who the employee reasonably expects to report the harassing behavior to the proper authority. For instance, the 7th Circuit recently reversed summary judgment for an employer, Peri Formworks Systems, Inc., because the court found that a reasonable jury could conclude that a former employee, McKinley Lambert, gave sufficient notice of sexual harassment to trigger employer liability when he made complaints to two yard leads, even though the yard leads did not have the authority to hire, fire, or discipline employees. Lambert v. Peri Formworks Systems, Inc., 7th Cir. No. 10-C-6789, U.S. App. LEXIS 1499 (July 24, 2013).
Peri created and implemented a written anti-harassment policy in May 2005 that identified Peri’s Human Resources Manager and CEO as the individuals to whom reports of sexual harassment should be made. However, Lambert did not make any complaints to either of these individuals until after his termination in May 2007. Finding that Lambert did not comply with the proper reporting procedures, the district court granted summary judgment for Peri on Lambert’s claim of employer liability for sexual harassment.
On appeal, the 7th Circuit noted that liability could be triggered not just by notice to a supervisor, but by notice to someone who could “reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it.” The court held that since the yard leads had the responsibility to report “anything that was going wrong” to the yard manager, that a trier of fact could come to the conclusion that it was reasonable for Lambert to expect that a yard lead had the responsibility to, and would, refer his complaints to someone who could address the problem.
The court added that the adoption of the anti-harassment policy in 2005 did not relieve Peri from liability for the complaints Lambert made to the yard leads after the policy was adopted. The court held that the procedures prescribed in the policy were not unreasonable or inaccessible but that designating one or two off-site corporate representatives to receive sexual harassment complaints did not relieve on-site employees from their duty to report harassing behavior “up the ladder,” especially if the employees were expected to make such reports.
The importance of a written anti-harassment policy prescribing proper reporting procedures cannot be understated. However, the mere presence of this policy will not relieve an employer from liability under Title VII of the Civil Rights Act of 1964 if an employee makes a report of harassing behavior to another employee who is not designated in the policy but who can “reasonably” be expected to report up the ladder to the proper authority. It is therefore important for employers to train their employees about when they may have a duty to report harassing behavior so as to avoid employer liability for sexual harassment.