You can’t be retaliated against for NOT reporting sexual harassment. The more you know.

I didn’t even have to go to law school to figure that out. Unfortunately for a plaintiff and her lawyer, they learned this lesson the hard way.

Twice.

The plaintiff began working for the defendant as a full-time order processor. Within two years, the defendant promoted the plaintiff to the management position of Group Leader.

Part of the plaintiff’s duties as a Group Leader was reporting sexual harassment allegations when she learned of them. The defendant provided clear instructions on how to do so.

In 2019, another female employee informed the plaintiff that a male co-worker was sexually harassing her. Despite her duty to follow the defendant’s reporting procedure, the plaintiff did not. Instead, she conducted her own independent investigation into the allegations. The plaintiff asked the female employee to provide a written statement detailing her allegations, which the female employee gave her a few days later. Another employee submitted a corroborating statement. The plaintiff also messaged a former employee via Facebook to discuss her experience with the accused.

But, the plaintiff never shared any of this with management or HR.

When all of this came to light later, the defendant fired the plaintiff. So, she sued for retaliation.

To prevail on a retaliation claim, a plaintiff must produce evidence from which a reasonable juror could find that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between the two.

Let’s focus on that protected activity piece. An employee engages in a protected activity by either: (1) filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Title VII or other employment statutes; or (2) opposing an unlawful employment practice.

So, what about not complaining? What do you say, Seventh Circuit Court of Appeals?

Sexual harassment is indisputably an unlawful employment practice and thus, reporting allegations is a recognized protected activity under Title VII. But [the plaintiff] did not actually report harassment; she failed to report harassment. Failing to report is not a protected activity under Title VII.

But, doesn’t she get credit for conducting her own investigation? Nope.

Whatever her motivation in undertaking her own investigation instead of taking the report to HR, her conduct simply is not statutorily protected activity. Thus, [the plaintiff] cannot satisfy the first requirement of a retaliation claim.

Hold on a sec. What if she called to complain but no one answered the phone? Still no protected activity.

[The plaintiff] argues that she attempted to report when she called the ombudsperson, but her call went unanswered, and she never actually spoke with anyone. She admits that she never made another attempt to call the ombudsperson or to communicate the complaint to an HR representative as required by the reporting policy. [Company] management independently learned of the allegations and asked [the plaintiff] if she knew anything.

Folks, please ensure that you have a policy and practice of requiring managers to: (1) report complaints of discrimination and sexual harassment; (2) take prophylactic steps to separate the victim from the alleged harasser; and (3) refrain from conducting unauthorized independent investigations into the underlying complaint.