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Delays in complaining about sexual harassment
June 12, 2006
As an arbitrator I once had a case in which a group of women made a complaint about alleged sexual harassment that had been going on for a period of eight years. How could they wait that long, I wondered.
It was simple. They had good-paying jobs. They lived in a small town. If they got fired, there was no hope of getting a job that good. They thought that they might get fired if they complained.
Read Why Don't 'Reasonable Women' Complain about Sexual Harassment? by L. Camille Hébert at Ohio State University College of Law. She will explain it for you.
Abstract:
In this article, I examine the manner in which the lower federal courts have applied the affirmative defense to liability for supervisory sexual harassment, which was articulated by the United States Supreme Court in the 1998 cases of Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. In particular, this article focuses on the second prong of that affirmative defense, which requires that employers prove that employees who are targeted for sexual harassment failed to act reasonably in responding to the harassing conduct. The article explores the conclusion of most of the federal courts to examine the issue that the failure to immediately file a formal complaint about harassing conduct constitutes unreasonable conduct on the part of the target of harassment. The article then addresses the ways that women typically respond to sexual harassment, referencing empirical research, and explains why women reasonably fail to immediately file formal complaints concerning harassing conduct. Finally, the article explores the ways in which the reasonable woman standard might be used by courts in judging the reasonableness of women's conduct in response to sexual harassment under the affirmative defense.
L. Camille Hébert at Ohio State University College of Law. Professor Hébert has published a number of law review articles on employment discrimination, sexual harassment, employee privacy, and alternative dispute resolution. Her treatise on Employee Privacy Law was published in 1993 and is supplemented annually.
Professor Hébert makes frequent presentations to academic and professional audiences on issues of sexual harassment and employee privacy, including genetic testing and electronic surveillance. Professor Hébert served as Chair of the Employment Discrimination Section of the Association of American Law Schools in 1998. She currently serves as a member of the Workplace Mediation Advisory Committee of the State of Ohio Commission on Dispute Resolution and Conflict Management.
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