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Never silence a harassment case by urging complainer to resign

by on
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—and a sure path to losing a retaliation lawsuit.

Recent case: Carla Dulaney assembled boxes at a Virginia packaging factory. During many shifts, no supervisor was on duty. Instead, a lead production worker managed the workflow. He had the authority to assign work and report misconduct to management.

Dulaney claimed that Bobby Mills, the lead production worker on her shift, began sexually harassing her and demanding that she take “care of him” or he would make her life “hell.”

Dulaney began complying with Mills’ sexual demands. She said Mills 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 disease.

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

Dulaney finally talked to a higher-level supervisor and told the whole story. Mills was fired. Dulaney was offered a severance agreement in exchange for resigning. When she refused to sign, she was escorted off the premises. She sued, alleging sexual har­­assment.

Result: A lower court dismissed her case after the employer testified that Dulaney had been invited back to work and hadn’t really been terminated. But the 4th Circuit Court of Appeals reversed, saying the circumstances surrounding Dulaney’s last day might persuade a jury that the company intended to terminate her despite later invitations to come back. (Dulaney v. Packaging Corporation, No. 10-2316, 4th Cir., 2012)

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