Sexual harrassment

The Fourth Circuit Court of Appeals (the federalappellate court that hears appeals from certain lower federalcourts) recently ruled that in sexual harassment cases, theemployer may use the defence that the plaintiff failed to use thecomplaint procedure, even if the failure was because she was notsure whether the alleged harasser was a "predator" or merely an"interested male who could be rebuffed". This defence may only beused when the employer takes no "tangible employment action". Inthis case, the plaintiff claimed that the employer's failure topromote her was "tangible employment action", making the defenceunavailable to the employer. The Court disagreed. The plaintiff'ssupervisor had allegedly groped her, flirted with her, and kissedher among other acts, and after one particular instance ofharassment, the supervisor reported his own behavior tomanagement and was terminated. Not until his termination, and theemployer's subsequent failure to promote the plaintiff to herformer supervisor's position, did the plaintiff bring her claimsto court.The plaintiff never complained about her formersupervisor's behavior.

Source: Matvia v. Bald Head Island Management Inc., No.00-1650 (4th Cir. 31st July, 2001). Susan Gross, EpsteinBecker & Green