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When firing follows harassment, watch out! You could be facing a retaliation lawsuit

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources

Many sexual harassment complaints turn out to be much ado about very little. That doesn’t mean, however, that you can close the case and forget about the whole thing.

That can be especially dangerous if the person about whom the complaint was made is a supervisor who still has authority over the employee who complained. That puts the alleged harasser in a position where he could potentially retaliate against the employee.

Note: Remember, employees can win a retaliation case even if the alleged harassment they were complaining about doesn’t meet the legal definition of harassment.

Here’s how to handle the aftermath of a closed harassment complaint: First, take steps to ensure that any questionable conduct stops immediately. That way, a small problem doesn’t mushroom into a real case of sexual harassment. Next, go slowly whenever the alleged harasser suggests any adverse employment action (for example, firing or demotion) against the employee. HR should independently investigate the underlying reasons for the proposed action to make sure it is entirely warranted and legitimate.

As the following case shows, failing to follow those simple rules can mean big trouble.

Recent case: David Corbitt and Alexander Raya worked as managers at Home Depot stores in Florida and Alabama, respectively. They complained that a male regional HR manager was making sexual advances toward them. They said the man called and suggested he wanted a sexual relationship.

Corbitt said the HR manager told him he was cute and dressed well. He also allegedly asked Corbitt whether his hair was a “natural color down there, too.”

Raya said the HR manager told him he was cute and that he was the “Italian heifer that I like,” while asking him out for drinks. Raya also said the HR manager once came up behind him and ran his fingers through his hair.

The men separately complained to HR, going through one of the alleged harasser’s subordinates. She eventually took their complaint laterally in the chain of command to one of the alleged harasser’s equals on the Home Depot org chart.

The harassing behavior stopped right away. But soon after, both Corbitt and Raya were terminated; Corbitt for allegedly giving discounts, and Raya for allegedly using a store cell phone for personal business.

Both sued. The court threw out their same-sex harassment claims, reasoning that the conduct hadn’t been severe enough to create a hostile work environment.

But both men explained to the court that they had broken no rules before they were fired. Discounting to meet the competition’s prices was a store policy, and the cell phone was used strictly to organize a store event. Plus, witnesses testified that the alleged harasser said he would get even with the two.

That, Corbitt and Raya argued, made it likely that the stated discharge reasons were just a pretext to retaliate. That was enough for the 11th Circuit Court of Appeals to send the case back to trial on the retaliation claim. (Corbitt & Raya v. Home Depot, No. 08-12199, 11th Cir., 2009)

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