An employee can lose a sexual harassment lawsuit and still win on retaliation if she can show she was fired for complaining about harassment. Don’t let that happen to you.
No matter how much aggravation it may cause, employees should always be free to report every allegedly sexually hostile action or comment through the appropriate channels. Sure, someone will have to investigate those constant complaints. It’s the price you pay for complying with anti-harassment laws.
Unless it is crystal clear that no harassment has taken place, discipline the culprits in a way that’s likely to stop any further harassment.
Recent case: Jennifer worked for West Coast Contractors for just about six months before she was fired. During that time, she complained internally numerous times about alleged supervisor and co-worker sexual harassment.
First, a supervisor commented that Jennifer’s duties were “girly work.” Then a co-worker commented that a large-breasted woman would be coming to the company barbecue and dubbed her “Double D.” Later, when the woman arrived, both the supervisor and the co-worker commented on her physical attributes and asked Jennifer if large breasts intimidated her. Later, the co-worker suggested that Jennifer might want to wear a French maid uniform while performing her work.
Jennifer complained a number of times to the company president. He met with her and discussed the problems, but apparently didn’t do enough to make the harassment stop. She kept bringing up incidents. Meanwhile, her boss began complaining that she wasn’t performing her job very well anymore.
Finally, the president fired Jennifer after she complained once again. He claimed she was terminated for.
Jennifer sued, alleging sexual harassment and retaliation. The court tossed out the sexual harassment claim, reasoning that while unpleasant, nothing that had happened was severe enough to create a hostile environment.
However, the court let Jennifer’s retaliation case proceed. It concluded that her discharge on the heels of sexual harassment complaints and the suddencould show a retaliatory motive. A jury will decide if that’s the case. (Westendorf v. West Coast Contractors, No. 11-16004, 9th Cir., 2013)
Final note: While the court said Jennifer hadn’t been sexually harassed, that probably would have changed had she remained employed much longer. When supervisors and co-workers don’t respond to orders to stop questionable behavior, that behavior often escalates.
The best approach is to immediately admonish both supervisor and co-worker that their behavior is unprofessional and unacceptable in the workplace. Then administer a punishment designed to stop the behavior. That can include a suspension, pay cut, demotion or other negative consequence. Remember, you have an obligation to prevent future sexual harassment.
If you are in doubt about how to proceed, consult your attorney. A skilled lawyer is the best judge of whether boorish behavior constitutes sexual harassment and what you should do under the specific circumstances.
Finally, always follow up with the employee who complained—and document your conversation. Ask her if the conduct stopped and remind her to come forward immediately with any further complaints.
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