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Harassment Complainers: Are They ‘The Untouchables’?

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Question: Doesn’t it seem like once an employee complains about harassment or discrimination they enter some kind of “employee protection program,” much like the witness protection program? They become practically untouchable because employers are so afraid of being hit with retaliation lawsuits. You may have legitimate business reasons—such a restructuring—to eliminate a complainer’s job, just first sit back and think how it will look to a jury ...

Case in Point: Jessica Magyar, a 22-year-old college student, worked quarter-time as a scheduler for an Indiana hospital. She was job sharing a part-time position with another worker. Jessica received no benefits, had no steady hours and worked on call.

On several occasions, a 52-year old male co-worker sat down in her lap and whispered offensive words in her ear. Magyar complained to her immediate supervisor but refused to file a formal complaint. The supervisor verbally warned the male employee to stop the boorish behavior. Magyar complained to higher-ups that the supervisor didn’t handle the problem, so the supervisor issued a second warning.

The following month, the supervisor decided to merge the two quarter-time positions into a single part-time position with benefits. Magyar was unable to work that many hours because of college. So the other job-sharing employee was offered the part-time position. Magyar’s supervisor said he’d call her for shift work, but never did. Eventually she was terminated for not working sufficient hours.

Magyar sued, claiming retaliation for her sexual harassment complaint. (Title VII of the Civil Rights Act of 1964 not only prohibits sexual harassment, in bans retaliation for exercising your rights under the law.) The hospital argued that the restructuring was a business decision and unrelated to Magyar’s complaint. (Magyar v. St. Joseph Reg’l Med. Ctr., 7th Cir., 9/12/08).

What happened next and what lessons can be learned?

While a lower court tossed out the case, the 7th Circuit appeals court sided with Magyar, sending the case to trial. It said a jury could reasonably find that the supervisor’s actions—executing the restructuring plan, failing to call Magyar for on-call work and terminating her—could draw an inference of retaliation.

“To succeed on a retaliation claim, [Magyar] need not prove that the underlying conduct she perceived as sexual harassment actually was serious enough to constitute a Title VII violation,” the court said. “Instead, she need only show that, when instituting her grievance, she had a ‘sincere and reasonable belief’ that she was opposing an unlawful practice. Having a man old enough to be her father plop into her lap and put his lips to her ear to whisper, ‘You’re beautiful,’ is the type of occurrence that, if it happened often enough, could constitute sexual harassment.”

3 Lessons Learned…Without Going to Court

1. Connect your own dots. Courts are fast to draw a timeline and connect events. If your employee has made any kind of a claim and then you mess with their job (transfer, demote, terminate or “restructure”) the court will connect the events and call it retaliation.

2. Connect immediately to all complaints. In this case, the supervisor was hesitant to do anything until the employee shared her history of being a victim of sexual assault. Such a revelation was unnecessary. The supervisor was “on notice” (and obligated to investigate) whether or not a formal complaint was made.

3. Connect back. The supervisor should have circled back to the employee and let her know there was a successful investigation and if there was any further unwelcomed conduct she should report it immediately. This was a real case of “bad connections.”

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