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Mar 12, 2015

By Eric B. Meyer

Can you smack your sexual harasser, complain, and still claim retaliation?

The plaintiff in this case (Speed v. Wes Health System) claimed that she was sexually harassed by her male supervisor for over a year. The court’s opinion details alleged comments and groping in vivid detail. (No recap here. I plan to keep my post PG, damn it! OK, PG-13. You happy, now?).

Whenever the plaintiff supposedly complained, her employer did nothing about the harassment.

Can a plaintiff hit her harasser and win a retaliation claim?

So, finally, she decked him one.

That got the employer to take notice. Indeed, it determined that the plaintiff had been sexually harassed and it fired her harasser. Then, the company also fired the plaintiff.

So, the plaintiff sued for retaliation.

Her former employer responded by arguing that her claims should be dismissed because she admitted that she was terminated for “the efforts she made to defend herself”). Effectively, the company wanted the court to rule that, whenever an employee strikes a co-worker, the employee absolutely cannot prevail on a retaliation claim.

But, not so fast, said a Pennsylvania federal court:

In effect, Defendant seeks a ruling that if an employee strikes a co-worker, regardless of the circumstances, an employer’s decision to terminate must necessarily be upheld in every case, even where retaliation is a plausible alternative explanation. I am not persuaded that the law requires such a result….Here, Speed does not contend that she struck Garway to protest his conduct, but rather that she struck him to defend against his conduct. She does not contend that he deserved to be struck, but rather that she deserved to be protected against his unwanted physical advances….At a minimum, under the totality of the circumstances discussed above, Plaintiff has alleged enough to move forward with discovery and attempt to prove pretext.”

Supervisors need to know their role in harassment complaints

Folks, please train your front line managers and supervisors not to trivialize or ignore complaints of harassment, no matter how minor (or major).

Indeed, their role is not to cast judgment in any way.

Rather, make sure that your managers and supervisors pass along all complaints of harassment to whomever is responsible for investigating and addressing them.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.