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Looking for a quick end to harassment case? Never urge the complaining employee to resign

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in Discrimination and Harassment,Human Resources

Sexual harassment victims deserve to have their claims investigated, not ignored. Under no circumstances should you encourage a complaining employee to quit instead of having to endure continued harassment.

That’s a sure indication to many juries that the worker was punished for reporting sexual harassment.

Recent case: Carla Dulaney assembled boxes for Packaging Corp. of America. During many shifts, no manager or supervisor was on duty. Instead, a lead production worker managed the workflow. He had the authority to assign work, send employees home early without pay, assess attendance points that could lead to termination under the no-fault attendance plan and report employee complaints and misconduct to management. In addition, the lead production worker carried keys to various rooms.

Dulaney claimed that Bobby Mills, frequently the lead production worker on her shift, began sexually harassing her after he recommended her for a permanent position. She later said Mills almost immediately began demanding that she take “care of him” or he would make her life “hell.” Mills allegedly said he would spread false rumors about Dulaney if she didn’t have sex with him.

Dulaney began complying with Mills’ sexual demands, usually in the men’s bathroom or an office area where Mills knew they would be undisturbed since he had the key.

Dulaney said Mills often interrupted her work by rubbing up against her to signal he wanted sex. She said he sometimes screamed at her when she refused. Occasionally, he sent her home without pay when she wouldn’t comply. Later, Mills began spreading rumors to Dulaney’s co-workers that she had a sexually transmitted infection.

That’s when Dulaney complained about the rumors to Mills’ direct supervisor. He allegedly reminded Dulaney that she was “replaceable.”

Eventually, Dulaney was missing time on the line because she spent considerable time crying when Mills yelled at her. When other employees complained, Dulaney finally talked to a higher-level supervisor and told the whole story. Mills was terminated.

But that didn’t help Dulaney, who was offered a severance agreement in exchange for resigning. When she refused to sign, she was escorted off the premises.

Dulaney sued, alleging sexual har­­assment. The trial court dismissed her case after Packaging Corp. testified that Dulaney had been invited back to work and hadn’t really been terminated.

But the 4th Circuit Court of Appeals reversed, concluding that the circumstances surrounding Dulaney’s last day at work might persuade a jury that the company intended to terminate her despite later invitations to come back. It ordered a trial. (Dulaney v. Packaging Corporation, No. 10-2316, 4th Cir., 2012)

Final note: When a supervisor sexually harasses a subordinate and that subordinate also endures an adverse employment action, the employer faces almost certain liability. That’s because supervisor harassment accompanied by an adverse employment action has no real defense. It doesn’t matter if the supervisor is terminated for the harassment if the victim also finds her job in danger.

It doesn’t matter if someone has an official title of supervisor or manager. What matters is that the person holds de facto supervisory authority, as Mills did in this case.

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