Generally, if an employee is going to complain of harassment by a supervisor, in my experience, the complaint is raised to another person, such as another manager or Human Resources. A lot of employees simply do not feel comfortable having that conversation with their bosses.
Of course, if an employee does have that conversation with his or her boss, the boss needs to be aware that the complaint cannot simply be pushed under the rug. As a recent 6th Circuit case makes clear, this is where it is crucial that employers provide training and other guidance to supervisors in how to handle such complaints. In EEOC v. New Breed Logistics, the 6th Circuit recently held as a matter of first impression that an oral complaint about harassing supervisor to that harassing supervisor is “protected activity” under Title VII for which an employee cannot be retaliated against. In so finding, the Court upheld a $1.5 million award for the EEOC where the EEOC raised claims of retaliation on behalf of two female workers and a male worker who complained of a supervisor’s harassing behavior.
Although the case is headline news in the legal community since it is the first time the 6th Circuit has confronted the issue, the decision itself is not surprising. This is because courts have routinely applied broad definitions of “protected activity” to insure that employees are not being intimidated from filing complaints of harassment.
Managers who hide complaints of harassment may think that they are protecting themselves, but they could be exposing themselves to greater liability. In the New Breed case, the defense was that the plaintiffs had performance issues. However, where a complaint of discrimination is not investigated and then an employee is terminated very close in time to that complaint, the failure to investigate the claims muddies the issue of whether there was a legitimate reason to terminate the employee.
It is certainly possible that, had the complaint been investigated, it would have been found to be unsubstantiated and the manager would not have been in any trouble. On the other hand, hiding the complaint clearly did not help the manager. It’s an expensive lesson to learn and is why companies should make clear that all complaints of harassment must be reported to human resources or whoever is else responsible for investigating complaints.