Retaliation: A Workplace Soap Opera

Constangy, Brooks, Smith & Prophete, LLP
Contact

Like sands through the hourglass . . .

Click here to view video.

. . . so are the days of our work lives.

ALL MY SENSITIVITIES

Click here to view video.

You have an employee, Daisy, who is honest as the day is long, but very sensitive. You find out that she reported you to Human Resources because you told her (in a nice, appropriate way) that you liked the dress she was wearing. Daisy reportedly told HR that your comment made her feel uncomfortable. Now HR has you in the office and is grilling you about it.

Because Daisy is honest as the day is long, you know she wasn't trying to get you in trouble. If she said she was uncomfortable, she no doubt was. 

No matter how freakin' crazy that might be.

You finally escape the HR office, and go straight to Daisy's desk. "Daisy! Why didn't you tell me that you took offense at my compliment? You had to report me to HR? After this, I'll never be able to trust you again."

AS THE WORM TURNS

Click here to view video.

Your employee, Brandon, is a snake-in-the-grass. You find out that Brandon has reported you to HR for alleged sexual harassment over something that never happened. It's a set-up -- he's reporting you only because he wants your job.

When HR calls you in for an interview, you let the HR manager have it. You call her a "politically correct social justice warrior." You tell her that she'd darned well better clear your name -- otherwise, "no option is off the table." (You really mean only that you may think about hiring a lawyer, but you say it in a threatening tone that implies something much worse.)

THE YOUNG AND THE RECKLESS

Click here to view video.

You and your direct report, Sheila, have worked together many years and have always had a good platonic relationship. Lately, you've been having difficulties with your marriage, and as the difficulties increase, Sheila has become increasingly attractive to you. Finally, on a business trip after a couple of drinks, you start sobbing and tell Sheila that you are in love with her. Sheila gently tells you that she isn't interested. You never touch Sheila or say anything explicitly sexual to her.

The next morning, over coffee, you apologize to Sheila, and she says she accepts and not to worry about it. On the trip home, everything is strictly business.

When you're back at the office, your HR manager asks to meet with you. Sheila has paid him a little visit. 

You sign your final warning, and go home. Your wife is out of town, and it's just you and the dog. You have a few drinks. Then you start thinking about Sheila. You call her cell, and she doesn't answer. Then you start texting her:

"Just tried calling u"

"Plz call me back?"

"I'm sorry I just want things 2 B like they were before."

"Why did u go to HR?"

"I thought we were friends"

"Plz - I want 2 b friends again"

"CALL"

"Why did u stab me in the back?"

"B***h!"

And, although such a thing would not seem possible, it goes downhill from there.

In each of these "soaps," it's doubtful that you are actually guilty of sexual harassment. In the first story, all you did was compliment Daisy about her dress -- in an appropriate, professional way. In the second, you didn't do anything wrong -- you were the victim of a frame-up by that dirty, rotten, no-good Brandon. In the third story, sure, you were drunk and sloppy and stupid, but it's not at all clear that one drunk-and-sloppy encounter in which no sexual talk or touching occurred would be enough for a claim of sexual harassment.

And, yet, in each case, you could still be in big trouble -- not for sexual harassment, but for retaliation. Let's look at each soap one by one.

All My Sensitivities: Daisy, bless her heart, made a complaint about your behavior, which she honestly perceived as sexually harassing. That's arguably legally protected activity. You were her boss, and after you found out about her complaint, you went to her desk, challenged her, and told her you couldn't trust her any more. Even though Daisy was wrong about the sexual harassment, you may very well lose on a retaliation claim.

As the Worm Turns: Dirty rotten Brandon fabricated a sexual harassment complaint about you. That is not protected activity. The trouble is, when you got mad, you didn't take it out on Brandon -- you threatened the HR manager, who was only doing her job by trying to investigate the allegations Brandon had made. Not cool.

Young & Reckless: Even though Sheila told you that she accepted your apology, that doesn't mean she hasn't made a legally protected complaint. She may have been agreeable at the hotel because you were her supervisor and she was trying to avoid a confrontation -- or a recurrence. Your texts could be viewed as not just sloppy-drunk-and-in-love but threatening and retaliatory. (And maybe you should do something about that drinking.)

THE GUIDING LIGHT

Click here to view video.

It's possible to have a valid retaliation claim based on an underlying complaint that has no merit. That's because even mistaken or meritless complaints are usually protected as long as the complaints were made in good faith. Even if the complaint was made in bad faith, you can be liable if you retaliate against the person who is trying to investigate, or who merely communicates to you that a complaint has been made.

In other words, even if you win, you can still lose. This is why HR will tell you (if you're the accused) to have no contact with the accuser except as necessary to carry on the company business. HR is looking out for you both. 

Tune in tomorrow . . . (well, next week)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP
Contact
more
less

Constangy, Brooks, Smith & Prophete, LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.