What happens when an employee complains about sex harassment and the employer does nothing?  Well, in the case of Duch v. Jakubek, they get sued and lose.  In a decision coming out of the federal Second Circuit Court of Appeals (the circuit covering New York, Connecticut and Vermont), a female employee complained about sex harassment by a co-worker.  She complained when she was assigned to work with that harasser.  She asked for a schedule change to avoid the man.  The manager asked what happened.  She said she did not want to talk about it.  The manager then allegdly responded that he did not want to know what happened.  He dropped the matter.  The female employee then complained to the EEO officer, who was told not to report the harassment.  There was no follow-up.  The plaintiff suffered emotionally.  A new EEO officer came on the scene who did an investigation. 

The Second Circuit found this avenue to report EEO issues was adequate, even if the personnel were not well trained.  But, the court also found the employer may still be liable if the it "knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate action."  

Thus, the critical piece for the court was what the supervisor did or did not do.  The supervisor knew or should have known something had occurred, but did nothing.  He stuck his head in the sand like an ostrich.  The court cautioned that it was not creating a new standard of liability when an employee refuses or fails to report harassment.  "We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem – as [the supervisor here is] alleged to have displayed – will not shield an employer from liability under Title VII."  

Thus, the grant of summary judgment was not proper and the matter would proceed to trial.  Because the employer’s investigation did not start for another three months, the employer would be liable for the harassment.  

So, yes, an employee refusing to report harassment is one issue.  But, here there was an additional issue.  The act of refusing to disclose some information may put an employer on notice that further investigation is warranted, the court found.