Commentary: When is a harassment complaint not a harassment complaint?

• Date: 08 October 2007

Byline: Jesus J. Villa

The Seventh Circuit recently decided an interesting same-sex harassment case that addressed the question of when an employer is put on notice of potential workplace harassment. In Bernier v. Morningstar, Inc., Todd Bernier sued Morningstar, under Title VII, claiming sexual harassment and retaliation. More specifically, Bernier claimed that Morningstar not only did not properly respond to his internal complaint of same-sex harassment, but that it terminated him in retaliation for his complaint. Bernier had been employed at Morningstar since late 1999. Christopher Davis was an openly gay co-worker of Bernier. According to Bernier, starting some time in January 2003, Bernier noticed that Davis would stare at him when they passed in the hallway. Bernier believed Davis was sexually interested in him. Although this apparently made Bernier uncomfortable, he did not say or do anything about it. Then, in January 2004, Bernier claims Davis took "an overt, purposeful and glaring look" at Bernier while they were both standing at the urinals in the men's room. This time, Bernier decided to do something. Morningstar maintained an anti-harassment policy that included instructions on how to report alleged harassment. The policy stated, simply, that an employee who believed he or she was being harassed should "discuss it immediately with your manager or the Human Resources department." The policy expressly cautioned that complaints to co-workers were insufficient to put the company on...