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Harassment complaint earns retaliation protection if complaint was made in good faith

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources,Leaders & Managers,Management Training

Many employees seem to believe that they can get job protection and immunity from reasonable discipline just by complaining to management about alleged harassment. And it’s true that employees who report alleged sexual harassment to management—even conduct directed at another employee—are protected from retaliation.

However, it’s also true that employees have such protection only if they have a good-faith, reasonable belief that what they are reporting is actually sexual harassment.

Thus, employees who make pests of themselves by reporting every comment they overhear or interaction they see, no matter how innocuous or minor, aren’t automatically protected from retaliation.

Recent case: Timothy Portfliet worked for H&R Block Mortgage Corporation and told the HR department that one of his subordinates was being sexually harassed. The woman came to Portfliet after an off-premises happy hour and said that their mutual supervisor had put his arm around her and asked her, “Why do you want to be with a loan officer like that when you can be with someone like me?”

However, the woman was not “with” the loan officer in question. She told Portfliet that she was offended by the comment since she was happily married.

The HR office launched an investigation and ultimately terminated the supervisor. His replacement then terminated Portfliet, who sued for retaliation. Portfliet reasoned that he had reported suspected sexual harassment and was punished for doing so.

But the woman testified that she hadn’t meant for Portfliet to report the incident to HR and she didn’t think the behavior was sexual harassment.

Neither did the court. It classified the incident as “simple teasing” or an “offhand comment” that was an isolated incident and not serious harassment. It also said no reasonable person could have believed that it was sexual harassment. Therefore, Portfliet wasn’t protected from retaliation even if that was what his eventual discharge was for. (Portfliet v. H&R Block Mortgage, No. 07-14516, 11th Cir., 2008)

Advice: Keep a log of harassment complaints. Even minor incidents, repeated frequently and for an extended period of time may grow into sexual harassment by sheer volume. 

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