Aug 04, 2016
By Peter Friedmann

As an Ohio Sexual Harassment Lawyer, I can advise you that it is of the utmost importance that the employee being harassed report the harassment according to the employer’s policy.  If your employer has a policy that dictates what an employee should do if he or she is being harassed, you MUST follow that reporting procedure in order to have a claim against your employer.

The Sixth Circuit addresses this problem frequently and has consistently held that if an employee unreasonably fails to take advantage of the employer’s reporting policy, their claim can be dismissed.  For example, in 2009, the Sixth Circuit addressed this issue in Tamra Balding-Margolis v. Cleveland Arcade.  In that case, Margolis filed suit against Cleveland Arcade (dba Hyatt Regency Cleveland), claiming, among other things, that she was sexually harassed and discriminated against based on her gender.

When Margolis was hired, she was given a copy of the Policy Against Harassment and a copy of the Associate Handbook.  Therefore, she was aware that if she experienced any type of harassment or even a workplace problem, she had several avenues in which to report that harassment or problem to a supervisor or manager.  The policy listed specific people that Margolis should report to.  Margolis was eventually investigated and fired due to an issue not related to sexual harassment.  During that termination meeting, she lodged several complaints against one of her managers but failed to mention any type of sexual harassment.  She later alleged in her Complaint that she was indeed sexually harassed by two members of management but admitted she had never reported it to any superior, as dictated by the Policy Against Harassment and Associate Handbook.  Margolis did claim she reported the harassment to the harasser himself but this action was in direct violation of the employer’s policy, which dictates specific people Margolis should report to.  The district court found that Margolis had unreasonably failed to take advantage of the reporting policy provided by the employer because she never reported the sexual harassment to those listed in the employer’s policy.

The employer’s argument was basically this- if you do not report this to us, we will not know about it and we can’t fix something we are not aware of.  Obviously reporting the behavior to the harasser himself is not effective.  Therefore, the district court granted the employer’s Motion for Summary Judgment.  Margolis appealed to the Sixth Circuit Court of Appeals but it too agreed with the district court and held that Margolis failed to take advantage of the employer’s reporting policy.  The lesson here for employee is ALWAYS report any type of sexual harassment, in accordance with your employer’s policy.

Refer to this article on sexual harassment and hostile work environment generally.  https://www.thefriedmannfirm.com/what-is-a-hostile-work-environment/