Employee sends spouse to voice harassment complaint: Is that ‘protected’ activity?

Employees who complain to HR or management about alleged discrimination or harassment are engaging in protected activity and can’t be punished for complaining.

But what if the employee can’t summon the courage to complain and, instead, sends someone else? Is sending a spokesperson to complain also protected activity?

A federal court says “yes,” at least when it’s the employee’s spouse who takes action.

Recent case: Helen, an administrative secretary for the City of Sanger, supervised an 18-year-old intern. When that intern ran into Helen’s boss—the mayor—at a local gym, he allegedly asked the intern about her racial background, inquiring whether she was a “mojada.” The word translates into “wetback” and is a derogatory term for an illegal immigrant.

The mayor also asked the young woman to demonstrate her cheerleading skills and gymnastic routine. He also inquired whether the intern knew if Helen “liked” him, which the intern took as questioning whether Helen was sexually attracted to the mayor. The intern said she didn’t know and the mayor asked her to find out.

The intern later told Helen what happened at the gym. Helen, in turn, told her husband, a former police officer. She encouraged him to complain to the city manager. Helen’s husband then set up a meeting with both the mayor and the city manager. He told the mayor to leave both his wife and the intern alone and told the city manager that the mayor was harassing them.

According to Helen, this complaint prompted the mayor to begin a harassment campaign against her. He allegedly winked and smiled at her when they encountered each other. He also told others that she was “the worst thing that ever happened” to the city.

Soon, Helen received a layoff notice, purportedly because of city budget shortfalls.

She sued, alleging retaliation for reporting allegations of harassment and derogatory racial comments. She claimed the budget shortfall was just an excuse to punish her for her protected activity.

The city argued that Helen hadn’t engaged in protected activity because she had not been the one who voiced the complaint. In their view, Title VII requires that the employee herself to come forward and not a husband or other representative. It also argued that only conduct at work could count for harassment, so anything the mayor said to the intern at the gym didn’t count.

The court disagreed after Helen testified that she had urged her husband to be her spokesperson because she didn’t want to confront her supervisor herself. The court said that requiring the employee to act might mean fewer complaints and would chill enforcement of the nation’s anti-discrimination laws. A spouse can speak for his or her partner and trigger the anti-retaliation provisions. Plus, the location of the harassment wasn’t important.

The court also concluded that Helen had shown that budget concerns may have been an excuse meant to cover illegal retaliation since others were hired while Helen was fired. Her case will now go to trial. (Palomo v. Sanger, et al., No. 14-CV-1769, ED CA, 2015)