Q. Does the employee have to bring an internal complaint before going to an outside agency or to court?
A. Not necessarily, no, although courts increasingly expect this and employers may use this as a defense to claims. The U.S. Supreme Court has said that an employee’s unreasonable failure to use the employer’s internal process can be a complete defense to claims involving “empty” supervisory threats and supervisor hostile work environment claims. This is an argument, but not a complete defense to claims of supervisory threats that were carried out or co-worker or non-employee hostile work environment claims. An employee may argue that the employer’s process was flawed or would have been ineffective due to, for example, the higha position of the accused or some other reason.