Co-Worker Sexual Harassment, and Co-Worker (Harasser) Retaliation...

[kmckenn]

So, by what you are saying... If the company knew of the original discrimination (harassment), administered disciplinary action to the harasser, knew that retaliation was a prohibited form of discrimination against a complainant, knew that the harasser was enacting the prohibited discrimination (IE - retaliating) against the complaintant by actually coming forward to the employer with the prohibited act of discrimination (retaliation), did nothing to stop the prohibited discrimination (retaliation) being acted out at their very feet, and in fact then (perhaps indirectly)participated in the prohibited discrimination (retaliation) by discriminating against the complaintant because they had complained about the harasser, the employer by it's knowledge (and even PARTICIPATION) of all these discriminatory acts would be liable?

An equally, if not more interesting point to discuss here, might be, what does "MITOUS" mean?

 

[mitousmom]

To have a claim under the EEO statutes the individual must have suffered actionable harm. While there has been great debate as to what constitutes harm under the statutes, the problem with the situation you describe is that the victim hasn't suffered any harm under any of the viable definitions of harm.

That the harasser is bad mouthing her to the employer, quite simply is not actionable harm. No body has done anything to her. The harasser hasn't said anything to the victim, and while the harasser has made comments to the employer, the employer hasn't done anything to the victim. It's not even clear from your descriptions, that the victim is even aware that the harasser is making comments about her to the employer. A knowledgeable employer, listening to the harasser bad mouth the victim, contrary to your recitation of facts, would know that the harasser isn't engaging in illegal retaliation.

In the EEO area, name calling, even using derogatory terms, does not automatically rise to the level of actionable harm. The law looks at the severity of the action and how often it happens. If the harasser called the victim a lying bitch to her face in the middle of the work place, that single statement would not be sufficient to rise to the level of actionable harm under current interpretations of the EEO statutes. None of this means, however, that an employer can't prohibit uncivil behavior or lying or however it would describe your revengeful actions of the harasser. The only point I'm making is that the harasser's actions don't rise to the level of illegal retaliation.

In response to one of the other posters, I'm not proporting to be anything. I am simply trying to share some of the knowledge I've gained while doing this work for thirty years. I have nothing to gain by trying to deliberately mislead anyone. My standard advice to anyone who describes an actual situation, whose facts lead me to believe that there might be a violation of any of the federal EEO statutes, is to contact EEOC or a state or local human rights agency for further information and guidance. I typically don't recommend attorneys unless I know their qualifications and experience.

 

[kmckenn]

Now, if the harasser was in fact attempting to get the complaintant terminated, as they had been, and it DIRECTLY/TANGIBLY results in the "ultimate employment action" (termination) of the complaintant, that would be HARM, thus creating employer liability for not only its NON-action to stop the discrimination (retaliation), but it's actual condoning of the actions and its (self-documented, admitted and confessed) participation in the discriminatory act(s).


WHICH**************. brings us back the FULL CIRCLE, to the original post.... co-worker retaliation (retaliation equaling, discriminating on a protected status, IE opposing an act made unlawful by this subchapter (Title VII)), where the employer was AWARE of the discrimination (IE - Retaliation) by one of its employees WHERE/BECAUSE, the employer condoned it and participated in it. One would have a very hard time arguing that the EMPLOYER was not AWARE of the DISCRIMINATION, *BECAUSE* the EMPLOYER was PARTICIPATING in it.

 

[mitousmom]

Termination is actionable harm under any of the definitions and it is action by the employer. The harasser can't terminate the complainant, only the employer can.

If the complainant is terminated and alleges that her termination is retaliation for
her having complained about sexual harassment, EEOC and the Court would look to the motives of the employer. For the employer to be found to have retaliated against her, the evidence would have to show that the employer fired her because she complained of sexual harassment.

Let's say that complainant is fired for taking company equipment based on a report to the company by the harasser. The employer's policy and practice is to fire any employee who takes company equipment without permission. The company would argue to EEOC or the Court that it fired complainant for violating its policy and would contend that how it learned she violated the policy was irrelevant. EEOC and the Courts would probably agree.

If on the other hand, if the company terminates the complainant simply because she's continues to be the center of controversey because of the continuing reports of the harasser, her termination would be retaliation against her because of her original complaint.

 

[kmckenn]

(the employer) "....would contend that how it learned she violated the policy was irrelevant". So ANY EMPLOYER could "contend" and ANONYMOUS *TIP*, to justify a "witch hunt" (IE discriminate against, or place under additional scrutiny) of any possible policy/rule violations, of which THEY are the supreme authority of what it is they allege is a actionable rule/policy violation...

Sounds to me like there is NO PROTECTION whatsoever from RETAILIATION on the part of the employer by your standards or definitions.

 

[mitousmom]

I'm trying to convey to you how the Courts look at a situation like the one you describe. I don't get to make the rules and quite frankly the Courts aren't interested in my opinions or definitions.

Illegal retaliation typically doesn't take the form you describe. Most retaliation claims arise from the victim's contention that the employer is now treating her differently because she complained of sexual harassment or something illegal under the EEO statutes. For example, the complainant alleged that a supervisor sexually harassed her. Subsequently, the complainant was denied a promotion. She claims that she was denied a promotion because of her prior complaint. There is no involvement or suggestion of involvement by the alleged harasser. It is the employer itself who she believes is penalizing her for complaining.

Complaining about sexual harassment or anything illegal under the EEO statutes, is not a permanent shield that will prevent an employer from taking any action in the future against the complainant. The retaliation provisions tell employers that the action taken can't be based simply upon the complainant's statutory right to complain about illegal treatment. If the complainant violates company policy or rules, she can be treated as any other employee.

But, stay tuned, the Supreme Court has under consideration this term, a case that could be a vehicle to change how the Courts view the whole question of retaliation under the EEO statutes.