When is a harassment complaint not a harassment complaint?

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The Seventh Circuit recently decided an interesting same-sex harassment case that addressed the question of when an employer is put on notice of potential workplace harassment. In Bernier v. Morningstar, Inc., Todd Bernier sued Morningstar, under Title VII, claiming sexual harassment and retaliation. More specifically, Bernier claimed that Morningstar not only did not properly respond to his internal complaint of same-sex harassment, but that it terminated him in retaliation for his complaint.

Bernier had been employed at Morningstar since late 1999. Christopher Davis was an openly gay co-worker of Bernier. According to Bernier, starting some time in January 2003, Bernier noticed that Davis would stare at him when they passed in the hallway. Bernier believed Davis was sexually interested in him. Although this apparently made Bernier uncomfortable, he did not say or do anything about it. Then, in January 2004, Bernier claims Davis took “an overt, purposeful and glaring look” at Bernier while they were both standing at the urinals in the men’s room. This time, Bernier decided to do something.

Morningstar maintained an anti-harassment policy that included instructions on how to report alleged harassment. The policy stated, simply, that an employee who believed he or she was being harassed should “discuss it immediately with your manager or the Human Resources department.” The policy expressly cautioned that complaints to co-workers were insufficient to put the company on notice of a problem.

This policy notwithstanding, Bernier decided he would confront Davis directly. Using the company’s computer system, he sent Davis an anonymous text message that read, “Stop staring! The guys on the floor don’t like it.”

Here’s where things got messy. Davis, upset by the anonymous warning, was concerned that he was being harassed because of his sexual orientation. What’s more, it turned out that Davis had a lazy eye that could make it seem like he was looking off at something he wasn’t actually looking at.

Unlike Bernier, Davis did follow company policy and complained to Human Resources. Human Resources investigated and determined that the message had been sent from Bernier’s computer. When confronted, Bernier first denied sending the text message. Morningstar then fired Bernier.

Only after his termination did Bernier admit to sending the message. Additionally, Bernier claimed that the company, once aware of the text message, should have recognized the message as a harassment complaint and treated it as such. Because of Morningstar’s failure to do so, and their decision to fire him instead, Bernier sued for discrimination and retaliation.

The district court granted summary judgment in Morningstar’s favor, and the Seventh Circuit affirmed. As the Seventh Circuit pointed out, it is well established that an employer’s notice of harassment is a prerequisite for liability. Bernier’s failure to make a proper internal harassment complaint meant that Morningstar could legitimately assert that, as a matter of law, it had insufficient notice even to investigate whether Bernier might be the victim of harassment. Morningstar could not be found liable for not investigating alleged harassment of which it was not even aware.

Experienced employment counsel should not be terribly surprised at this outcome on these facts. Nevertheless, the issues raised in Bernier are far from straightforward. Morningstar was wise to include in its anti-harassment policies specific procedures for employees to bring complaints. But, in defending against a harassment claim, it may not matter much that an employee failed to follow specific complaint procedures if it turns out that the employer had actual knowledge of the harassment. And determining whether such actual knowledge existed may require a jury trial.

Consider the following hypothetical:

Perry and Linda are friends who work in different departments for the same employer. Perry is a manager, but does not supervise Linda – she reports to Frank. Perry sends Linda an e-mail asking about the status of a report that’s several days overdue. Linda e-mails back, saying, “Sorry, Perry. I guess I’ve been distracted. To be honest, Frank has really been pushing my buttons lately, and I guess I’m letting it get to me. I’m starting to see why the other girls didn’t want to work for him. L Sorry, guess I needed to vent. Anyway, you’ll have the report soon.”

Did Linda just complain to Perry that Frank has been harassing her? One can easily articulate what both sides of the argument would be in litigation. The defense would argue this was an informal e-mail between friends (not a formal complaint) wherein Linda was expressly “venting” about unspecified issues with her supervisor – issues which might not be at all related to discriminatory harassment.

A plaintiff would argue that this e-mail, formal or informal, was more than sufficient to put the company on notice that Linda was upset by something Frank was doing, that it was affecting her work, that she linked it in her mind to why “the other girls” avoided working for Frank, and that she was upset enough to tell a manager about it (whatever “it” turns out to be).

As a defense attorney, I would not want Perry to simply dismiss Linda’s e-mail as informal venting. Linda’s e-mail sends up enough flags for a prudent manager to at least follow-up with Linda’s concerns – such as an e-mail like this:

Linda, I’m not certain how you want me to respond to your e-mail comments. If you think you’re being harassed, I need you to be clear about that and make a formal complaint to human resources that can be investigated. On the other hand, if you were just “venting” and don’t want me or the company to do anything, please make that clear. Either way, please let me know what you’d like to do about Frank.

Such an e-mail would put the company in a much better position to manage the situation. If Linda replies that she was just venting and does not expect the company to intervene, it will be much harder for her to argue differently later. On the other hand, if Linda does want the company to intervene, the company can deal with the situation before it turns into a lawsuit.

The truth is, even when an employer has anti-harassment policies with clear complaint procedures, not all employees will follow those procedures. Employees may informally “vent” to co-workers or supervisors, or complain anonymously, or directly confront the alleged harasser. As Bernier illustrates, an employee could claim that such communications were enough to put the employer on notice of potential harassment.

So, to protect themselves, employers are wise to:

* Make sure their anti-harassment policies include clear procedures for reporting alleged harassment;

* Train supervisors not only on the company’s anti-harassment policies, but also on how to recognize potential harassment and complaints and respond to such situations;

* Instruct employees on how to report harassment complaints, and expressly warn them that not following these procedures will mean the company will not have notice of a problem;

* Document all potential harassment complaints and company responses – especially any statements by
an employee that he or she does not want to make a formal complaint; and

* Be prepared to investigate and deal with serious harassment situations even when no formal complaint has been made.

Jesús J. Villa is a partner at Gonzalez Saggio & Harlan LLP in Milwaukee focusing on management-side labor and employment law. Jesús can be reached at [email protected], or at 414.277.8500.