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Cutting off good shifts can be retaliation

by on
in Discrimination and Harassment,Human Resources

When an employee complains about sexual harassment and suddenly finds herself under scrutiny—and sees her schedule changed—she may have a retaliation case.

Recent case: Stacy worked as a server at a bar and restaurant. She told management that another em­­ployee was sexually harassing her, making lewd comments and sometimes forcing her to watch pornography. Then she called an attorney.

Suddenly, Stacy found herself under increased scrutiny. She began being passed over for prime shifts and wasn’t offered other open shifts.

She sued, alleging not just sexual harassment, but also retaliation for seeking legal assistance and complaining to management.

Her employer argued that it had neither fired Stacy nor denied her any other opportunities. It also argued that merely not being offered some shifts wasn’t serious enough to constitute retaliation.

The court disagreed and ordered a trial. It reasoned that in the restaurant business, being assigned to certain shifts could mean much higher earnings. Therefore, a reasonable employee might fear complaining about harassment if she believed doing so might mean lost shifts. (Ortiz v. Big Bear Events, et al., No. 3:12-CV-341, WD NC, 2013)

Final note: Stacy also sued under North Carolina state law, alleging intentional infliction of emotional distress. Under the law, the behavior has to be outrageous. She argued that the humiliation she suffered while being sexually harassed—including being touched and forced to watch pornography—was outrageous. But the court disagreed, since North Carolina’s law defines outrageous behavior as conduct that is “atrocious and utterly intolerable in civilized community.” While unpleasant, the court refused to rule the alleged harassment fit the definition.

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