Here’s a rule of thumb to follow: An alleged harasser should have no part in a later termination decision involving his or her accuser.
Giving the alleged harasser any role in the firing is almost certain to spur a retaliation lawsuit, even if it turns out the harassment claim doesn’t stick.
Recent case: David Corbitt and Alexander Raya were both Home Depot store managers. They complained to the company that a regional HR manager was making sexual advances. They claimed the HR manager made personal phone calls to them, asked about their underwear and persistently queried them about sexual preferences and grooming habits.
A few weeks after the men complained, Home Depot fired them. They sued, alleging both sexual harassment and retaliation. A lower court dismissed the case, but now the 11th Circuit Court of Appeals has reinstated the retaliation claim.
It turned out that the alleged harasser had a direct part in the termination decision. That was enough for the court to order a trial. The rationale: The alleged harasser’s participation may have tainted the termination process. (Corbitt, Raya v. Home Depot, No. 08-12199, 11th Cir., 2009)
Final note: Many employees lose their discrimination or harassment cases but go on to win on retaliation claims. That’s why it is crucial to make sure every manager and supervisor understands he can’t punish employees for complaining. If you must discipline such employees, make sure you document the reasons—and make sure those reasons are rock-solid.
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