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Harassment complaint? Terminate with care!

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in Discrimination and Harassment,Human Resources

Good news if you’re worried about firing an employee who has filed a sexual harassment complaint. If your investigation concludes the complaining worker was also partly at fault, he won’t be able to win a wrongful discharge case—unless he can prove that his underlying complaint was a “substantial motivating reason” for his termination.

Recent case: Romeo, who is gay, was considered an excellent nurse at Western Medical Center in Orange County. Romeo’s new supervisor was also gay.

After enduring what he later claimed were his supervisor’s lewd and offensive advances, he filed an internal sexual harassment complaint.

Romeo claimed the supervisor had blown in his ear—and exposed his genitals while making sexually crude remarks.

The hospital investigated and fired both, apparently believing what the supervisor alleged about Romeo: that he had also engaged in lewd conduct, like bending over provocatively. It concluded that both violated the company’s sexual harassment policy.

Romeo sued, alleging wrongful discharge in violation of public policy. He essentially claimed that if he hadn’t complained about sexual harassment, he never would have been fired, since the hospital never would have investigated and discovered what it believed was mutual sexual harassment.

A jury was instructed to consider whether Romeo’s complaint was a motivating factor in his discharge and concluded it was. He was awarded $238,000.

The hospital appealed, arguing that the jury should have been asked whether the complaint was a “substantial” motivating reason for the discharge. The court reversed the verdict and ordered a new trial in which another jury will decide whether the initial complaint was a “substantial motivating reason” for Romeo’s discharge. (Mendoza v. Western Medical Center, No. G047394, Court of Appeal of California, 4th Appellate District, 2014)

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