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A Recent Court Verdict Should Cause Employers Concern

When employees complain about unlawful acts in the workplace, they are engaging in a protected activity and must not be retaliated against for doing so. Is telling your supervisor to stop harassing you considered to be a protected activity? A recent court case says yes, and this verdict should scare employers silly.

Here’s the story according to court documents on New Breed Logistics, a supply-chain company based in North Carolina, was sued by the Equal Employment Opportunity Commission for harassment and retaliation because of the actions of one of its supervisors at its Memphis warehouse. The agency said James Calhoun subjected three female temporary workers to unwelcome sexual touching and lewd, obscene and vulgar sexual remarks and then fired them because they complained. He was also accused of firing a male employee who opposed the harassment and agreed to be a witness during the company’s investigation. The jury awarded the four claimants $1.5 million.

The company appealed the retaliation verdict, arguing that the women were not engaged in a protected activity because they did not complain about the harassment to anyone other than their supervisor. Specifically, they each told Calhoun to stop harassing them, but they didn’t complain to a manager or anyone in the HR department. The sixth circuit court of appeals said they didn’t need to file a formal complaint, that protected activity “can be as simple as telling a supervisor to stop.”

This is not the first time that a court has come to this conclusion. In fact, lots of courts have determined that the rejection of sexual advances constitutes a protected activity. However, some courts have also said that it doesn’t. Why should California employers care about a court verdict that happened in Tennessee? Because it’s the latest example of how this issue has been decided and can be cited by a California court in making its own decision. And, California judges tend to gravitate toward the most aggressive pro-employee ruling they can find and this one is now easily findable.

So, what can employers do to protect themselves from a similar situation?

Tell all employees that harassment and retaliation is against the law. You would think that Calhoun would have known that doing things like walking up behind women and pressing his private parts against them was unlawful, but maybe not. When his male subordinate admonished Calhoun for his behavior, Calhoun’s response was that he was just playing with the women and didn’t mean them any harm.

Encourage employees to tell an HR representative or member of management if they feel they are being harassed.

Tell temporary employees that they are protected from harassment too and encourage them to report any inappropriate activity.

Conduct thorough investigations when you receive complaints. One of the employees did place an anonymous call to New Breed’s complaint line that stated: “James Calhoun makes sexually explicit remarks to female employees.” In response, an HR representative spent a half hour with Calhoun and asked him five questions related to the allegation. The HR representative did not interview any other employees, yet determined that no misconduct had occurred.

Finally, and probably most importantly, be very careful whom you put in a supervisory position. Employers pay the bill when supervisors harass or retaliate against employees, regardless of whether the employer knew about it or not. You can’t know everything that your supervisors are doing, so the best you can do is choose them wisely.

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Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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