The second part of the employer’s defense requires the employer to show that the aggrieved employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 118 S.Ct. at 2293, Ellerth, 118 S.Ct. at 2270. If the aggrieved employee could have avoided all of the harm, the employer will not be liable; if only some of the harm could have been avoided, the damages will be reduced accordingly.
Unreasonable failure to complain. This determination depends on the circumstances and information available to the employee at that time. Employees should not be expected to complain immediately after the first or second incident of relatively minor harassment. The employee may tell the harasser directly that he or she wants the harassment to stop, then wait to see if this is effective. If the harassment persists, though, further delay may be found unreasonable.
Other reasons for an employee’s failure to complain may include:
Other efforts by employee to avoid harm. The employer cannot use the defense even if the employee unreasonably failed to use the complaint process, if the employee made other efforts to avoid harm. A prompt complaint to the EEOC or Tennessee Human Rights Commission (THRC) while the harassment is ongoing could qualify as such an effort, as could a union grievance. Also, a temporary staffing agency employee could complain of harassment to the staffing firm or to the client, reasonably expecting either to correct the problem. The timing of the complaint is important - if the employee could have avoided damages by complaining sooner, then the damages may be reduced accordingly.