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Loose lips can lead to retaliation litigation

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in Employment Law,Human Resources

When an employee files a sexual harassment or discrimination complaint, ensure no one tries to make life difficult for that employee. That could lead to a retaliation lawsuit—even if the underlying complaint isn’t serious enough to support a lawsuit.

Handle the complaint professionally and with as little fanfare as possible. Provide details only to those who truly need to know about the matter.

Recent case: Jean lost a sexual harassment lawsuit against her employer, but won a retaliation claim. She was reinstated to her job.

After many years passed, she again filed a harassment complaint against a different co-worker, whom she accused of unwanted physical touching and making inappropriate comments.

The employer launched an investigation and separated Jean and the harasser by assigning him to a different shift.

Somehow, co-workers learned about Jean’s complaint, possibly from the alleged harasser. They began to avoid Jean and openly supported the alleged harasser. In addition, Jean complained that she was passed over for an assignment she wanted, allegedly because a co-worker didn’t want to work with her, given her history of making sexual harassment complaints.

Jean sued, alleging retaliation for her second sexual harassment complaint.

The court said the case could go forward based on her co-worker’s behavior and the denial of the assignment. (Sandberg v. Brennan, DC MN, 2017)

Final note: This case illustrates another potential problem. The National Labor Relations Board takes the position that employees may discuss internal complaints as part of their right to engage in concerted activity to address workplace problems. That makes it difficult to issue a “gag order.”

All you can do is limit the number of people with direct access to information about internal complaints. Then monitor how the complaining employee is treated by her co-workers.

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