When harassment allegations surface, we often advise separating the two parties to minimize chances of more misbehavior. Sometimes, employees find their own ways to keep away from harassers.
However, business realities can make that unsustainable. If an employee who has managed to remove herself from a harassing situation refuses reassignment to her old position, that’s insubordination.
Recent case: Shelly began working for New York State Electric and Gas as a meter reader but was soon promoted to a gas fitter position, working the day shift. She was the only woman among roughly 30 gas fitters.
Shelly experienced difficulties with her co-workers, claiming they shunned her “on a daily basis” and refused to help her like they did male colleagues. She claimed one co-worker told her that she was “taking this job from a deserving man” who needed “to take care of his family.” Shelly also claimed male co-workers regularly urinated in her presence.
Shelly volunteered for a transfer to the night shift, where she became the only gas fitter. She seldom saw the troublesome men again. Then, three years later, her supervisor informed her she had to go back to the day shift.
Only then did Shelly complain about the earlier sexual harassment. When she refused to return to work, the company fired her for insubordination.
She sued for sexual harassment and retaliation.
The court said she was far too late on the sexual harassment claim; those must be filed within 300 days of the latest incident. She also couldn’t use fear of resumed harassment as an excuse for insubordination. Nor was it retaliation to discharge her for refusing to transfer shifts. The court tossed out her case. (Sanderson v. NYSEG, No. 13-1603, 2nd Cir., 2014)
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