Even with the best sexual harassment training, it’s hard for some employees to grasp exactly what constitutes sexual harassment and what’s merely horseplay or roughhousing—especially when the behavior is directed at the same sex.
But that doesn’t mean that an employee who comes forward with that sort of complaint isn’t engaged in protected activity. If the complaining employee makes a harassment claim in good faith, any retaliation may be illegal. That’s true even if the repeated behavior turns out not to be sexual harassment.
Advice: That’s why you must instruct all your managers and supervisors: Absolutely no paybacks allowed!
Recent case: Cornelius Riegel worked for the New York Department of Transportation. He toldthat a co-worker sexually harassed him by attempting to expose him. The man allegedly tugged at the bottom of Riegel’s shirt and pulled it over his head. Riegel also claimed that he had heard the same co-worker had been investigated for previous sexual harassment and for exposing himself in the lunchroom.
After he complained, Riegel said supervisors began harassing him—joking about his complaints and telling other employees they had better watch out or Riegel might charge them with sexual harassment too. Plus, he claimed he was demoted and harassed in an effort to get him to quit.
Riegel sued, alleging harassment and retaliation. The court quickly tossed out the harassment claim, reasoning that the incidents simply didn’t constitute sexual harassment, especially since Riegel hadn’t even seen the lunchroom incident.
But the court said the retaliation claim could go to trial. It didn’t matter that Riegel’s underlying complaint was invalid—it just mattered that he had complained in good faith. (Riegel v. State of New York, et al., No. 1:05-CV-1503, ND NY, 2008)