Over the past half-century or so, society – and the law – decided that victims of workplace sexual harassment should not have to suffer in silence. Such misconduct not only warranted severe consequences for perpetrators, but employers were put on notice that they could no longer turn a blind eye to such behavior or sweep it under the rug. Of course, these changes in attitudes and laws did not eliminate sexual harassment, nor did they cause every executive, manager, HR director, and corporation to enact robust policies to address harassment when it occurred. In this blog article, we cover:
- Retaliation Against Victims Who Take a Stand Against Harassment
- Weaponizing An Employee’s Response to Sexual Harassment
- Reasonable Opposition To Sexual Harassment
- Employer Mischaracterizes or Exaggerates The Seriousness of The Victim’s Response
- Employer Violation Of Their Own Policies
Retaliation Against Victims Who Take a Stand Against Harassment
And those on the receiving end of sexual harassment and misconduct still faced significant institutional obstacles that stood in the way of holding their tormentors accountable. Making matters worse, the very steps that victims take to vindicate their rights and fight back against harassment and other prohibited activity often become the basis for further indignity and injustice. With disturbing frequency, victims are punished and face retaliation for their understandable actions and reactions after enduring repeated instances of harassment.
That is why victims need to understand how they can effectively end the sexual harassment they experience, and their lawyers need to know how the law treats certain common responses to such conduct in the context of claims against employers
Weaponizing An Employee’s Response to Sexual Harassment
When it comes to making complaints about sexual harassment, there is not always a clean, linear progression of harassing conduct immediately followed by a verbal or written complaint to a manager/supervisor/HR representative, which, in turn, leads to corrective measures that end the harassment.
Sometimes, a victim feels understandably compelled to takes steps on their own initiative to oppose and put an end to the harassing conduct. In some instances, a victim’s actions toward a harasser seem reasonable even though they may violate the employer’s code of conduct. Suddenly, the victim can find themselves in the employer’s crosshairs for such a violation instead of the perpetrator.
But can an employer weaponize a sexual harassment victim’s efforts to confront a harasser or stop their misconduct by using those responses as a subterfuge to justify termination or disciplinary action?
In such cases, victims and their attorneys can utilize three distinct theories to show that an employer’s decision to discipline and/or terminate the victim/employee was pretextual.
Reasonable Opposition To Sexual Harassment
Courts have excused certain actions taken by an employee/victim where those actions were deemed reasonable in opposing either sexual harassment or other types of discrimination perpetrated against them. In situations where a victim has made complaints to their employer, but the employer failed to take any remedial action, there is growing case law that excuses an employee from acting out of frustration. Various cases from across the circuits are addressing whether a victim’s behavior was reasonable given the totality of circumstances surrounding their harassment as well as their employer’s response or lack thereof.
Examples of behavior that courts have found reasonable and that did not negate their protected activity includes an 8th Circuit case where a woman was fired for physically shoving her co-worker/ex-husband for repeatedly verbally harassing her after the company refused to intervene. A Northern District of Illinois case excused an employee’s grievance that the company claimed was threatening and resulted in his termination.
Employer Mischaracterizes or Exaggerates The Seriousness of The Victim’s Response
The second theory that can allow the inference of pretext and retaliatory intent involves an employer exaggerating the seriousness of the conduct that allegedly justified an adverse action taken against the victim of harassment and/or discrimination.
Although similar to the Reasonable Opposition theory, the Employer Exaggeration theory also considers the actions an employer takes to discipline or terminate an employee for alleged “policy violations” if they do so without looking at the context in which those actions took place.
Attorneys for a victim should understand exactly what an employer claims their client did “wrong” and learn how the employer treated the alleged harassers upon learning of their misconduct. Counsel can then highlight how the employer exaggerated or mischaracterized the actions of a victim or juxtapose how the employer disproportionately disciplined the victim relative to the harasser. This can be useful for settlement negotiations, as well as necessary to provide a judge and jury with a different prism through which to view such employer actions.
Case law supports judges giving juries the benefit of understanding the full picture of a workplace dispute to reasonably determine whether certain actions by the victim merited discipline and/or termination, or if the employer’s exaggeration was intended to exonerate themselves.
Employer Violation Of Their Own Policies
The third and final theory that can allow the inference of pretext and retaliatory intent involves situations where counsel for victims/employees can show that their employer is violating its own policies and procedures about escalating complaints to HR, investigating allegations, and/or issuing discipline.
Proving that an employer failed to comply with its own policies and procedures can, in turn, demonstrate that the employer did not take sufficient remedial steps to prevent sexual harassment in the workplace after they were first notified.
When victims of workplace sexual harassment stand up for themselves, they shouldn’t suffer further indignity for doing so. Those who represent victims should not allow employers to cover up their own failures to respond appropriately to harassment by retaliating against brave employees who do.