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My supervisor sexually harassed me, but please don’t do anything about it.” Employees victimized by a supervisor may imperil their claims either by not giving sufficient details of the harassment or by telling the employer they would prefer to work out the matter themselves, as illustrated by the 9th U.S. Circuit Court of Appeals’ recent decision in Hardage v. CBS Broadcasting Inc., 427 F.3d 1177 (9th Cir. 2005). Although the result of Hardage appears to be employer-friendly, the issue is not quite so clear-cut, and the specific obligations of an employer to the immediate victim, to its other employees and to the alleged harasser remain cloudy when the employee asks the employer not to take action. In Hardage, the plaintiff, a male sales manager for a local television station, claimed that the station’s female general manager sexually harassed him. The plaintiff told the human resources representative that the general manager had made unwanted sexual advances. Although human resources offered to treat his complaint as having an anonymous source, he refused to elaborate and omitted details regarding the alleged physical contact and groping. Twice within a two-week period, the plaintiff rebuffed human resources’ intervention, saying he preferred to handle the matter himself and was skeptical that the complaint could be kept anonymous. His employer came to regret not having followed up on these allegations when the plaintiff quit, alleging constructive discharge caused by, among other things, the general manager’s harassment. In affirming the district court’s summary judgment for the employer, the 9th Circuit held that the plaintiff’s insistence on handling it himself and failure to provide details of his allegations precluded the employer’s vicarious liability under the U.S. Supreme Court’s 1998 Ellerth/ Faragher tests. Under Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), an affirmative defense against vicarious liability for a supervisor’s harassment that had not resulted in a “tangible employment action” (e.g., termination, demotion, failure to promote) is available so long as the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. For example, in a recent decision, the employee’s failure to pursue her harassment claim beyond her immediate supervisor contravened the company handbook and led to the dismissal of her claim. Harvill v. Westward Communications LLC, 2005 WL 3388571 (5th Cir. Dec. 13, 2005). ‘Hardage’ outcome seems reasonable, but poses issues On its face, the Hardage outcome may seem perfectly reasonable. If an alleging employee does not supply sufficient details to put the employer on notice of what needs to be investigated and corrected, the employee has certainly failed to avail herself/himself of a preventive or corrective opportunity. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002, � V.D. (June 18, 1999); see also O’Dell v. Trans World Entertainment, 153 F. Supp. 2d 378, 389 (S.D.N.Y. 2001); Breda v. Wolf Camera & Video, 222 F.3d 886, 890 (11th Cir. 2000); but see Hardage, 427 F.3d at 1193 (dissent). Moreover, if the victim asks that nothing be done, it may be fair to assume that the employee is capable of weighing the gravity of the conduct and the best response to it. See, e.g., Hooker v. Wentz, 77 F. Supp. 2d 753, 757-58 (S.D. W.Va. 1999) . The Hardage court is not alone. Others have found that if employees effectively call for nothing more than a muted, or even passive, response from the employer, the employer should not be later blamed for avoiding an often time-consuming and disruptive investigation by heeding that wish. See Hooker, 77 F. Supp. 2d at 757-58; Torres v. Pisano, 116 F.3d 625, 639 (2d Cir. 1997); Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999). In practice, however, is reliance on Hardage the most prudent course for employers confronted by a reluctant victim? Prior to Hardage, other courts (and the Equal Employment Opportunity Commission) had been concerned that heeding employee requests for confidentiality and inaction would be inconsistent with the affirmative defense. See, e.g., Malik v. Carrier Corp., 202 F.3d 97, 106 (2d Cir. 2000). The EEOC expects employers to act to resolve harassment despite the complaining employee’s insistence on confidentiality and inaction. See EEOC Enforcement Guidance, supra, at � V.C.1.d. A reticent employee’s desire for confidentiality or inaction may mask serious misconduct for which the employer later can be held accountable. O’Dell, 153 F. Supp. 2d at 390; Dinkins v. Charoen Pokphand USA Inc., 133 F. Supp. 2d 1237 (M.D. Ala. 2001); Wixted v. DHL Airways Inc., 1998 WL 164922 (N.D. Ill. April 7, 1998). An employer that, having been apprised of allegations of supervisor harassment, drops the matter at the employee accuser’s request runs the risk that the supervisor is nevertheless harassing others or continuing to harass and intimidate the victim, thereby damaging workplace harmony and productivity (aside from violating Title VII). In a pre- Ellerth/Faragher case ultimately finding no employer liability for heeding an employee request for inaction, the 2d Circuit nevertheless observed, “There may be cases in which a supervisor or co-worker is harassing a number of employees, and one harassed employee asks the company not to take action. In those cases, the employer’s duty to the other employees would take precedence, and the company would most likely not be justified in honoring a single employee’s request not to act.” Torres, 116 F.3d at 639. Aside from the danger of “false negatives” (impeding recovery for legitimate victims of harassment merely because of fear of backlash from the harasser) that may flow from Hardage, there also is the threat that Hardage‘s rationale would encourage baseless workplace complaints. Thus, an employee could present nonmeritorious accusations against a supervisor, and then insist on not wanting to do anything about them. The employer could take advantage of the affirmative defense as per Hardage simply by following the employee’s directive and doing nothing. But such “false positives” may then go uninvestigated, since there would be less incentive to follow up if the alleging employee specifically requests otherwise, with the consequence that the accused supervisor remains blemished by insinuations of harassment that are neither verified nor refuted, much less brought to his or her attention. Moreover, even if employees report a harasser’s problematic behavior to management but do not themselves consider the conduct to be sexual harassment or want the employer to proceed, there is still the possibility that the employer may be charged with notice for purposes of a future claim involving that same harasser. See Dees v. Johnson Controls World Servs. Inc., 168 F.3d 417, 422-23 (11th Cir. 1999); Brunson v. Bayer Corp., 237 F. Supp. 2d 192, 204 (D. Conn. 2002); Wixted, 1998 WL 164922, at 11. By contrast, if employees have reason to expect that the company will fully investigate (and correct) any harassing conduct, the possibility of baseless accusations would be minimized. McDaniel v. American Red Cross, Johnstown Region, 58 F. Supp. 2d 628, 632 (W.D. Pa. 1999). Moreover, because the employer normally would be liable only if the underlying conduct is sufficiently “severe or pervasive” (see Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81 (1998)), minor complaints-what one court described as “the garden-variety social friction and fiction of the workplace”-need not necessarily be investigated. McDaniel, 58 F. Supp. 2d at 632. Aside from trivial matters, employers should want to know for themselves whether harassing conduct is interfering with their workplaces or putting them at risk. Pursuit of harassment-free workplace must be priority As a practical matter, employers and employees alike could well benefit from a clearer rule as to the obligation of employers to investigate and correct incidences of harassment that are reported, regardless of the expressed preference of the victimized employee. In the final analysis, employee confidentiality should not trump the pursuit of a harassment-free workplace. Otherwise, an employer could theoretically circumvent the Ellerth/Faragher requirement to prevent and correct workplace harassment simply by offering an alleging employee the option to keep the matter confidential (and, implicity, do nothing about it), which some employees may elect if only out of sheer embarrassment. See, e.g, Hardage, 427 F.3d at 1192 (Paez, J., dissenting in part) (noting that the employer representative to whom the alleging employee initially reported the harassment allegations suggested “do[ing] absolutely nothing and hop[ing] it solves itself” as one option for how to proceed). The better rule, and the more prudent workplace practice, is for employers to investigate all allegations of sexual harassment and take appropriate remedial action. It is, after all, the employer’s workplace that is threatened and damaged by an atmosphere of sexual misconduct, and the employer is in the best position to address any problems and respond to them fully before, and, it is hoped, in lieu of, litigation. Jay W. Waks, a litigation partner at Kaye Scholer in New York, is chairman of the firm’s employment and labor law practice, representing corporations in the United States and abroad. William Poorten is a litigation associate at the firm.

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