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Sometimes, an HR internal investigation reveals that, although harassment occurred, it didn’t rise to the level of illegal harassment. Don’t let that finding lull you into ignoring the complaint—and certainly don’t allow anyone to punish the person who complained.

The best approach: Act swiftly whenever anyone complains about any harassment. You can and should punish serious harassment even if it doesn’t technically violate state or federal law. Then, make doubly sure that any subsequent discipline against the complaining employee is entirely legitimate. In fact, always conduct an independent investigation before authorizing any discipline.

Here’s why:
Courts consistently let retaliation cases go to a jury trial even if the same judge dismissed the underlying sexual harassment complaint. That’s because employees who complain about what they reasonably believe might be sexual harassment are protected from retaliation.

Recent case: Jared Moren, a heterosexual male, took a job as a lineman for Progress Energy. His supervisor was also a heterosexual male. According to Moren, the supervisor almost immediately began a campaign to sexually harass Moren, calling him a homosexual and heaping crude and offensive names on him.

Moren complained to the company, bypassing his direct supervisors. After an investigation, the company fired the offending supervisor. But that didn’t end Moren’s problems. Co-workers and team members blamed him for the firing. One union rep even warned him that he should resign or he would be fired.

Shortly after, Moren was suspended. He then resigned and sued, alleging that he had had to endure a sexually hostile work environment and experienced retaliation when he complained.

The trial court dismissed his sexual harassment claim. It reasoned that the harassment he had endured was not “on account of sex.” The judge explained that same-sex harassment is illegal if it is based on stereotypes about sexuality. Had Moren exhibited feminine characteristics inconsistent with traditional male roles and been harassed because of that, the judge said then Moren would have had a sexual harassment case. Plus, the former supervisor testified that he harassed everyone who became a lineman, adding, “It’s my duty to harass …. It’s a fraternity. You haze them.” The judge said that was evidence the motivation wasn’t sexual or related to sex.

But the judge said Moren did have a retaliation case. Shortly after Moren complained to management, he was warned he would be terminated if he didn’t quit. Then management suspended him after he got into an argument with another supervisor. A jury will now have a chance to connect the dots and decide whether Moren suffered retaliation because he complained about what he believed was sexual harassment. (Moren v. Progress Energy, No. 8:07-1676, MD FL, 2008)

Final note: Had HR conducted a proactive investigation before Moren was suspended, it might have learned about the threat Moren got from the union rep. Then, it could have looked very carefully to make sure the suspension was truly warranted or just a trumped-up charge.

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