Second Circuit Dismisses Harassment Claim Based on Plaintiff’s Failure to Invoke Employer’s Policy

In a pair of cases decided in 1998, Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998), the U.S. Supreme Court established an affirmative defense for employers in certain sexual harassment cases. See Supreme Court Clarifies Standards for Employer Liability for Sexual Harassment by Supervisors. Under those cases, an employer is not liable for hostile environment harassment perpetrated by a supervisor where the employer has taken reasonable steps to prevent and promptly correct any harassment and the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities offered by the employer. Employers in many subsequent cases — including clients of KM&M — have successfully invoked the Ellerth/Faragher defense to secure the dismissal of harassment suits. See Application of the Ellerth/Faragher Affirmative Defense in Harassment Cases in the Second and Ninth Circuits. Recently, the U.S. Court of Appeals for the Second Circuit in New York had another occasion to consider the defense and again dismissed a harassment suit where the plaintiff failed to complain under the employer’s harassment policy. Leopold v. Baccarat, Inc., 239 F.3d 243 (2d Cir. 2001).

In Leopold, the plaintiff alleged she had been subjected to verbal abuse of a sexual nature by her supervisor. The employer had in place an anti-harassment policy, including a procedure for lodging internal harassment complaints. The plaintiff never invoked the employer’s complaint procedure before filing suit, asserting that she and her fellow employees were “too scared” to do so.

The trial court dismissed the suit on summary judgment and the Second Circuit affirmed.

Although the burden of proving the elements of the affirmative defense rests with the employer, the Court reasoned that once an employer has demonstrated that an employee has completely failed to avail herself of the complaint procedure, the burden of production shifts to the employee to come forward with one or more credible reasons for her failure to do so. Here, the Court found that the plaintiff failed to establish that her fear of using the employer’s complaint procedure was credible. Conclusory and subjective assertions (such as that the plaintiff felt the employer would not take the complaint seriously) are not sufficient. To justify a failure to invoke the employer’s policy, rather, the plaintiff must produce evidence that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response to such complaints in the past.

The Leopold decision illustrates once again the importance of maintaining and disseminating an effective harassment-free workplace policy and ensuring that all supervisors are trained in the requirements of the policy. By doing so, employers can frequently insulate themselves from (or at least secure a speedier dismissal of) burdensome and expensive harassment lawsuits.