By Erica Shelley Nelson and Brennen Johnson
In Swindle v. Jefferson County Commission, the U.S. Court of Appeals for the Eleventh Circuit determined that a female former employee of Jefferson County Sheriff’s Office (in Alabama) failed to establish a claim for hostile work environment sexual harassment. The employee sued the County after numerous incidents of alleged sexual harassment. However, the Court determined that the employee failed to establish her claim for a hostile work environment because the County showed that it had exercised reasonable care to prevent and correct harassing behavior and the employee allowed too much time to pass before bringing her claim.
In 2006, the County hired the female employee as a “laborer,” whose duties included weighing trucks and assisting deputies on traffic stops. In her lawsuit, the employee claimed that her direct supervisor, along with another coworker, began targeting her shortly after her employment began in 2006 with conduct such as inappropriate touching and sexual advances. Although the conduct began just after she gained her employment in 2006, the employee did not file a personnel complaint with the Sheriff’s Office until nearly two years later in July of 2008. The same day that she filed the complaint, her supervisor was placed on administrative leave. The coworker was placed on administrative leave two weeks later. Following a more thorough investigation, both the supervisor and the coworker were terminated.
The employee filed a discrimination charge with the Equal Employment Opportunities Commission in August of 2008. After receiving a “right-to-sue” letter from the commission, she sued the County, alleging that it violated Title VII’s protections against gender discrimination by creating a sexually hostile work environment.
The County responded by arguing that the Sheriff’s Office had a clear policy of preventing discrimination and harassment. It illustrated that it had promptly disciplined the officers involved upon receiving the allegations against them, and that the only reason the behavior continued was because the employee had failed to report any incidents until far after they had occurred.
The Court explained that Title VII protects employees from hostile work environments when a member of a protected group is subjected to unwelcome harassment that is sufficiently severe to alter the terms or conditions of his or her employment. The Court further explained that employers can defeat lawsuits for a hostile work environment if they show that “(1) [they] exercised reasonable care to prevent and promptly correct harassment, and (2) the employee unreasonably failed to take advantage of the employer’s preventative and corrective opportunities or to otherwise avoid harm.”
Explaining how the Sheriff’s Office had used reasonable care to prevent and correct sexual harassment, the Court said:
As to the first prong, Sheriff Hale has showed that he exercised reasonable care to prevent harassing behavior. The [Sheriff’s Office] has a formal sexual harassment-policy… [that] was both reasonable and effectively published. Sheriff Hale has also showed that he exercised reasonable care to promptly correct harassing behavior. When [the employee] reported that she was being sexually harassed, [the supervisor] was placed on administrative leave that same day, and [the coworker] was placed on administrative leave two weeks later. An investigation was immediately launched… [the perpetrators] were terminated.
The Court likewise explained that the female employee suing the County had failed to do her own part to help prevent or avoid any harassing behavior, stating:
As to the second prong, Sheriff Hale showed [the employee] unreasonably failed to timely report the harassment and no extenuating circumstances excused her non-compliance… [She] asserted that the harassment began in June 2006… Her first complaint, however, was not made until almost two years later.
Ultimately, the Court concluded that the employee’s lawsuit for a hostile work environment must fail because the Sheriff’s Office had reasonably attempted to prevent harassment and promptly disciplined the behavior upon learning about it, while the employee had given the Sheriff’s office no reason to believe that something was wrong.
While this case was probably decided correctly, the Court failed to acknowledge the fact that many victims of sexual or other harassment on the basis of a protected class may not be feel comfortable reporting workplace harassment, may be concerned about retaliation, and/or may not want to rock the boat and believe that if they wait, the situation will eventually go away. New employees, or employees who are vulnerable (which are frequently targeted by harassers) may have even a more difficult time coming forward to report workplace harassment. This makes it very difficult for both the employer, who is required to promptly investigate harassment, and the employee, who may feel scared or vulnerable. Also, if she had suffered an adverse employment action, then her claim would likely have survived in light of the fact that her supervisor was one of the perpetrators. Because there was no adverse employment action, the Sheriff’s Office had the benefit of the Faragher-Ellerth defense.
