As you may know, SCOTUS nominee Brett Kavanaugh stands accused of engaging in sexual misconduct against one, and possibly several, women, including Dr. Christine Blasey Ford. The allegations are based on conduct that allegedly occurred decades ago. This, predictably, has resulted in significant discussions, on social media and likely elsewhere, about the nature and likely truth of these accusations.
Many, if not most, of the public discourse – including President Trump’s (ugh) “contribution” – surrounding this issue can be synthesized into one point, and one question: Why didn’t these women come forward sooner? Why now?
There are many valid answers to this question; i.e., many valid reasons why a sexual assault/harassment victim will not report the incident(s) at all, let alone at or near the time they happened. The New York Times recently published an article about it; a new hashtag on Twitter – #WhyIDidntReport – addresses the question directly.
Notwithstanding these reasons, in the context of workplace sexual harassment, failing to timely lodge a complaint of sexual harassment may impact, and limit, one’s ability to successfully pursue a legal claim. This may arise in at least two situations.
But first, some background. Sexual harassment is a form of “discrimination” based on gender/sex. Sexual harassment in the workplace can give rise to two distinct types of claims: (1) those based on the harassment itself (which, in turn, may be further analyzed under the “hostile work environment” and “quid pro quo” approaches/frameworks), and (2) those based on the employer’s reaction to such complaints (retaliation). Failing to report sexual harassment may negatively impact a victim’s ability to successfully assert each type of claim, in different ways.
With respect to hostile work environment claims, under federal law, the employer may be entitled to assert an affirmative defense, known as the “Faragher-Ellerth defense” (after two Supreme Court cases bearing those names). In sum, where the harasser is a “supervisor” and the harassment does not culminate in a “tangible employment action”, the employer may escape liability if they meet their burden of demonstrating “ that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and  that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Batten v. Global Contact Services, LLC, 2018 WL 3093968, at *5 (E.D.N.Y. 2018). As such, an employee who “unreasonably fails” to report harassment assumes the risk of the employer establishing a defense to their claims. That said, courts note that “[a] plaintiff’s failure to report discriminatory harassment may be excused where the plaintiff has a credible fear that her complaint would not be taken seriously or that she would suffer some adverse employment action as a result of filing a complaint.” Setelius v. National Grid Elec. Services LLC, 2014 WL 4773975, at *29 (E.D.N.Y. 2014).
The failure to report, or complain of, harassment also may negatively impact an employee’s retaliation claim. “In order to establish a prima facie case of retaliation, a plaintiff must establish that (1) she engaged in protected activity; (2) the employer was aware of this activity; (3) the employee suffered a materially adverse employment action; and (4) there was a causal connection between the alleged adverse action and the protected activity.” Setelius v. National Grid Elec. Services LLC, 2014 WL 4773975, at *19 (E.D.N.Y. 2014). In the Setelius case, for example, the court dismissed plaintiff’s retaliation case, finding: “[E]ven assuming Plaintiff’s protected activity of complaining to Zarcano about the conduct of a male co-worker took place in Fall 2009, Plaintiff cannot show a causal connection between this complaint and her termination, since there is no evidence that the decision-makers who investigated and ultimately terminated Plaintiff had actual knowledge of her complaint, acted with the encouragement of a superior with such knowledge, or at the behest of a subordinate with such knowledge.” Setelius, 2014 WL 4773975, at *24.
In sum, while a sexual harassment victim may indeed have excellent reasons for not reporting the harassment, failing to do so may negatively impact their ability to pursue a legal remedy.