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Sexual Harassment - From Both Sides


The workplace should be an area of work. For the employer, that means dollars to the bottom line and anything that hinders that goal is not desired. For the employee, it usually means an open, free-thinking environment that allows them to maintain and build for themselves both a financial and fulfilling career. When sexual harassment enters the picture, it damages both the employer and employee abilities to adequately reach their goals.

In the workplace, harassment may be considered illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted, or when the victim decides to quit the job).

The U.S. Court of Appeals for the Sixth Circuit (Court) recently held that telling a sexually-harassing supervisor to stop his/her harassment was a protected activity under Title VII's anti-retaliation provision. Basically, when a victim tells a supervisor to stop" that notice is sufficient to notify the employer and cause the supervisor to stop his/her harassment.

In Equality Employment Opportunity Commission v New Breed Logistics, three women had been sexually harassed by their supervisor. Although the women never made formal, written complaints, they asked the supervisor to stop the harassing conduct. The women were all terminated, two by a different decision-maker. A male employee, who also told the supervisor to stop, was also terminated by a different decision-maker.

From the employee's side, you are protected under Title VII, 42 U.S.C. §2000e-3(a) (Opposition Clause), which states that it is unlawful for any employer to discriminate against an employee who has "opposed" a practice that is an unlawful employment practice. To establish a prima facie case of retaliation, a claimant must show: (1) claimant engaged in activity protected by Title VII; (2) the defendant knew of the protected activity; (3) thereafter, the defendant took adverse action against the claimant; and (4) a causal connection existed between the protected activity and the adverse action. Also, using a "cat's paw" theory of liability, the employer may still be liable if the harassing individual is the "driving force behind the employment action." In the case mentioned, liability for retaliation was extended to those terminations because the harassing supervisor influenced the supervisors who made the termination decision.

In sum, an employer can't take action against an employee who complains of sexual harassment under Title VII nor can the employer be the driving force behind terminating of an employee who asks a supervisor to stop the harassing behavior, because the complaint is protected by Title VII. This may be hard to prove, but on the employee's side, lack of documentation by the employer proving there were adequate reasons for the actions may be helpful.

From the employer's side, the reported case highlights the need to educate the employer's managerial staff and employees, temporary or permanent, on their sexual harassment policies. Supervisors must be trained to handle complaints of harassment appropriately and respond to concerns of harassment. From the employer's side, there is no excuse that the supervisor "didn't know it was a harassment type of behavior", especially if the employee has asked the employer supervisor to stop the harassing behavior.

Also, supervisors who may be put in these kinds of situations must be instructed on the proper procedures and documentation for disciplining/terminating employees. Employment actions must be based upon observed, documented misconduct. If a disconnected supervisor disciplines an employee based upon the input of another offending supervisor, then that disciplinary action can open the employer to retaliation liability under the "cat's paw" theory. This also can extend retaliation liability to human resources (HR) disciplinary decisions when the decision is motivated by a harassing "driving force" supervisor. HR managers must be aware of the issue and may need to question a supervisor's motive behind a disciplinary recommendation, particularly if the supervisor has not followed proper procedures and documentation.

For the employer, all the documentation must be in order before the disciplinary action is taken. If there are holes in the policies or procedures that govern harassment at the place of business, those must be dealt with before any actions can be taken.

If you are an employee and feel you were unfairly terminated or that harassment is occurring in your workplace and you don't feel like it is being handled fairly, or if you are an employer that feels like your policies or procedures may be insufficient, contact us at (402) 810-8611 or contact us online to schedule a free consultation.

Information from article by Jeffrey C. Miller, a Blog for Kegler, Brown, Hill & Ritter "Sexual harassment case good reminder for employers"