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Harassment ‘cure’ can’t burden employee more

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in Discrimination and Harassment

Employers have an obligation to stop illegal harassment as quickly as possible. But jumping at the first apparent solution may not be the best way to go.

First, consider whether the proposed fix makes things worse for the victim. If it does, you’ll need to take another approach.

Recent case: Homer Howard’s job with a snack company involved refilling vending machines at a large hospital. Howard worked the second shift so he could care for his young son, who had medical problems, and take him to medical appointments during the day.

Howard complained to his supervisors and others at his company when several employees at the hospital were harassing him. He said they called him “gay” and made lewd gestures and talked about oral sex whenever he came to fill the machines.

His supervisor told him it was just a joke and suggested ignoring the problem.

As often happens, the harassment escalated. Howard kept complaining.

Then the company offered him a take-it-or-leave-it proposition: transfer to the first shift instead of the second shift. But that shift interfered with his child care duties and also required mandatory overtime.

When he refused, he was terminated. Then he sued.

The 4th Circuit Court of Appeals ordered a trial. It reasoned that Howard’s employer badly mishandled the entire problem. First, it told Howard to ignore the harassment. Then, it offered a transfer to a shift that left Howard worse off than before he complained. (EEOC v. Cromer Food Services, No. 10-1476, 4th Cir., 2011)

Final note: In this case, employees of another organization did the harassing. That doesn’t matter. Employers are responsible for fixing harassment directed at one of their employees, even if it occurs at the hands of others outside the company.

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