Legal Alert: Employee Who Rejects Employer's Proposed Remedial Action Cannot Pursue Sexual Harassment Lawsuit

Date   Mar 26, 2007


A recent decision by the Eleventh Circuit reiterates the value of having an effective anti-harassment policy and complaint procedure in place and reaffirms an employer’s right to choose the remedial action it deems appropriate in response to a harassment claim, even if that action is not what the complaining employee requested.

A recent decision by the Eleventh Circuit reiterates the value of having an effective anti-harassment policy and complaint procedure in place and reaffirms an employer’s right to choose the remedial action it deems appropriate in response to a harassment claim, even if that action is not what the complaining employee requested. See Blue Cross/Blue Shield of Alabama v. Baldwin (March 19, 2007). Although the decision does not set any new standards, it highlights several basic points regarding harassment in the workplace, including: Title VII is not a general civility code; an employer is not required to credit the “she said” side of a “he said/she said” dispute (unless not doing so would be unreasonable); an employee’s generalized fear of losing her job does not excuse the failure to promptly complain of alleged harassment; and a complainant does not get to choose the remedy for the complaint.

In this case, the employee, Baldwin, worked for Blue Cross/Blue Shield (“Blue Cross”) and claimed she was subjected to harassing behavior by her male co-workers and Scott Head, her supervisor. According to Baldwin, Head and her co-workers frequently used profanity in the office and Head sexually propositioned her twice and played with his zipper in front of her.

Baldwin did not complain about the alleged harassment until over three months after the second sexual proposition, claiming she feared for her job and decided to “just go along to get along.” The company investigated Baldwin's complaint by sending a team to interview Head and Baldwin's co-workers, but could not corroborate Baldwin’s allegations. Based upon this investigation, Blue Cross concluded that there was no merit to Baldwin’s claims.

The company informed Baldwin of the outcome of the investigation and offered to provide an industrial psychologist to counsel Baldwin and Head and to monitor their interactions to prevent future problems. Baldwin rejected this suggestion and demanded that Head be discharged, stating that she could not work for him. Blue Cross refused to discharge Head, but subsequently offered to transfer Baldwin to another office. Baldwin refused this offer and again stated that she could not work for Head. Blue Cross offered Baldwin the alternatives of counseling or transferring offices two more times, but she refused both times. Ultimately, the company discharged Baldwin because she repeatedly stated that she could not work for Head.

Baldwin sued Blue Cross for, among other things, sex discrimination and retaliation under Title VII. The trial court granted judgment in favor of Blue Cross and the Eleventh Circuit affirmed this decision.

No Tangible Employment Action:

The Eleventh Circuit held that Baldwin did not suffer a tangible employment action because her termination was not caused by discrimination. Instead, Baldwin was fired because she refused to work for Head, refused a transfer, and refused to participate in counseling. The court held that firing an employee because she will not cooperate with the employer’s reasonable efforts to resolve her complaints is not discrimination based on sex, even if the complaints are about sex discrimination

Profanity did not Create a Hostile Work Environment:

The court held that the use of profanity in the office, which occurred on a daily basis and included, among other things, Head calling Baldwin’s male co-workers “cocksuckers” and “peckerwoods,” did not violate Title VII because generally it was not directed at women and most of the words used were gender neutral. Reiterating the U.S. Supreme Court’s admonition that Title VII is not a general civility code, the court noted that the law “does not prohibit profanity alone, however profane” and “does not prohibit harassment alone, however severe and pervasive”; instead “Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex.” Thus, “[i]t would be paradoxical to permit a plaintiff to prevail on a claim of discrimination based on indiscriminate conduct.”

Employer Established Faragher/Ellerth Defense:

The court did not rule on whether the sexual propositions and other sexually oriented conduct Baldwin experienced created a hostile work environment because, even if it did, Blue Cross established the affirmative defense set forth by the U.S. Supreme Court in the Faragher and Ellerth cases. Under this defense, an employer avoids liability for sexual harassment by a supervisor that does not involve a tangible employment action if: (1) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; and (2) the employee “unreasonably failed to take advantage of any preventive or corrective opportunities [it] provided.”

Baldwin did not dispute that she was aware of the company's anti-harassment policy and complaint procedure, but claimed Blue Cross could not establish the Ellerth/Faragher affirmative defense because its investigation of her allegations was inadequate.

Reasonable Investigation: In addressing the reasonableness of the company’s investigation of Baldwin’s complaint, the court noted that the employer is not required to credit the complaint’s uncorroborated statements if they are disputed by the alleged harasser. “Nothing in the Faragher/Ellerth defense puts a thumb on either side of the scale in a he-said, she-said situation.”

The court rejected Baldwin’s argument that the investigation was not reasonable because the investigators did not take more notes, because the discussion among them was not more thorough, or because they did not give more weight to a particular factor, stating that the court’s role under Faragher/Ellerth does not include “micro-managing internal investigations.”

Adequate Remedial Action: The court also held that the company’s remedial measures were sufficient to satisfy the Faragher/Ellerth affirmative defense. At the beginning of the investigation and again at its conclusion, the V.P. of Human Resources gave Head a warning, which stated that if the conduct of which he was accused was true or if like conduct is proven in the future, he would be subject to discipline, up to and including termination. The court held that this warning and the offer of counseling were sufficient remedial action. “Where the employer sees hostility but cannot tell if there has been harassment, warning the alleged harasser, requiring both parties to participate in counseling, and monitoring their interactions is a proper and adequate remedy, at least as a first step.”

Baldwin Failed to Take Advantage of the Employer’s Preventive or Corrective Opportunities:

The court held that Baldwin’s failure to take advantage of the company’s offered remedy was enough to establish the second element of the Faragher/Ellerth defense. Even if it was not, however, Baldwin’s failure to promptly report the harassment also established the second element of the defense. Under the Faragher/Ellerth plan, both the employer and employee have a duty to stop sexual harassment before it reaches the severe and pervasive stage that violates Title VII. However, this plan only works if the employee reports the harassment promptly. The court held that Baldwin’s three-month delay was “anything but prompt, early, or soon.”

Additionally, the court held that Baldwin’s reasons for failing to promptly report the harassment – that she feared being fired and felt that silence would best serve her career interests – did not excuse her delay. According to the court, such an excuse would render the Faragher/Ellerth defense largely optional with employees and “it would be essentially useless in furthering the important public policy of preventing sexual harassment.”

Employers’ Bottom Line:

This case illustrates the importance of having an effective and well-disseminated anti-harassment policy and complaint procedure in place. It also demonstrates the importance of conducting a thorough investigation and provides an example of how remedial action short of termination can be appropriate.

Ford and Harrison attorneys and F&H Solutions Group consultants can assist you in developing or reviewing your anti-harassment policies and complaint procedures and can provide interactive training for managers and employees on avoiding workplace harassment. Additionally, F&H Solutions Group’s Harassment Prevention Program is a video kit that serves as a self-contained resource for training employees and supervisors in the avoidance workplace harassment and is available for purchase from the Solutions Group web site: