“Failing to report is not a protected activity under Title VII.”
A manager who chose to conduct her own investigation into a harassment complaint, rather than following her employer’s reporting protocol, did not have a valid retaliation claim, according to the U.S. Court of Appeals for the Seventh Circuit.
In Alley v. Penguin Random House, the employer established a harassment reporting procedure that, among other things, required managers and supervisors to report any employee complaint of harassment to Human Resources, and they could be disciplined for failing to do so. The managers were given a copy of the procedure and trained on it. Nonetheless, a manager who received a harassment complaint chose to investigate the complaint on her own, and failed to notify HR or upper management. The employer discovered the manager’s own investigation when other employees complained to HR about the same harasser. The manager then reported that she, too, had been harassed by the same harasser. The harasser was terminated, and the manager was demoted for failing to report harassment. She sued, alleging retaliation in violation of Title VII.
In order to sustain a claim of retaliation under Title VII, an employee must show that: (1) they engaged in protected conduct; (2) they suffered an adverse employment activity; and (3) there is a causal connection between the two. A protected activity involves 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. Here, as the Seventh Circuit found, the manager “did not actually report harassment; she failed to report harassment.” And such inaction is not a protected activity, regardless of the manager’s motivation.
This case emphasizes that employers should implement clear reporting procedures for harassment and discrimination complaints and should train managers on the procedures. Then, they can and should hold those managers accountable for complying with the reporting procedures.