I give a quiz in my harassment prevention workshop that consists of questions like this: An employer is generally held liable when a supervisor fires a subordinate for refusing to have a romantic relationship, regardless of whether the employer knew the reason for the termination or not – true or false?
The answer is “true.” This action is a form of sexual harassment called quid pro quo, and employers almost always foot the bill when a lawsuit happens as a result.
Because of a recent court decision, I might need to add this question to the quiz: An employer is generally held liable when an employee gets a co-worker fired for refusing to have a romantic relationship – true or false?
According to the US Court of Appeals for the First Circuit, the answer is “true” and could place an extra burden on employers to ensure that employees are not being terminated because they have spurned the romantic interest of others.
Here’s the background on the court’s decision according to court documents on www.media.ca1.uscourt.gov:
Antonio Velazquez-Perez began working for Developers Diversified Realty Corp. (a company that owns and manages shopping centers in the US and Puerto Rico) in June 2007 as an operations manager. He was quickly promoted to regional general manager and began interacting with a human resources manager about personnel issues named Rosa Martinez.
Velazquez testified that he and Martinez frequently communicated by phone and email (they worked in different locations outside of the US) and that they had a good working relationship for the first ten months of his employment. During these exchanges, they sometimes flirted with each other, and when Martinez occasionally explicitly expressed a romantic interest in Velazquez, he gently rebuffed her.
But on April 10, 2008, that friendly flirtation came to an abrupt end when both parties stayed in the same hotel while attending a company meeting in the US. Martinez followed Velazquez to his room, tried to force her way in, and then stood outside the door until Velazquez threatened to call security. Following that, she called his room multiple times and sent him multiple emails that alternately expressed her anger and professed her love. Velazquez replied by saying, “No matter if you are miss universe and the woman of my dreams, I would never put in jeopardy my work environment.”
After the hotel encounter, more emails were exchanged including one from Martinez to Velazquez that said, “I don’t have to take revenge on anyone; if somebody knows your professional weaknesses, that person is me.” Subsequently, Velazquez complained about Martinez’s behavior to his supervisor, Rolando Albino, who suggested that Velazquez send a conciliatory email to Martinez because if he did not, “(s)he’s going to get you terminated.” Then Albino jokingly suggested that Velazquez have sex with Martinez.
After receiving more emails from Martinez that he considered to be threatening, Velazquez complained again to Albino and to Francis Xavier Gonzalez, Albino’s supervisor.
Martinez began discussing Velazquez’s job performance with Albino and Gonzalez shortly thereafter. Evidently, Martinez had some valid concerns about Velazquez, Albino had concerns of his own about him, and numerous complaints by Velazquez’s subordinates had been made about him.
After investigating the complaints made against Velazquez by his subordinates, Albino suggested that he be disciplined and, “if necessary,” fired. Gonzalez recommended a 30 day Performance Improvement Plan. Martinez said she needed to consult her superiors about it. But, before she did, she gave Velazquez one more try.
They were once again both staying at the same hotel in the US for a business meeting. Martinez once again followed Velazquez to his room and told him she loved him and wanted to have a romantic relationship with him. After he, once again, told her no, she sent an email to her superiors recommending that he be terminated immediately. Four days later, he was.
Velazquez sued the company for discriminating against him on the basis of sex in violation of Title VII of the Civil Rights Act by terminating him, subjecting him to a hostile work environment, and retaliating against him for complaining about sexual harassment. The district court that heard the case found in favor of the employer.
However, last month the US Court of Appeals for the First Circuit determined that, even though Velazquez had some performance issues, “A reasonable jury could find that Martinez’s discriminatory efforts were the proximate cause of Velazquez’s firing” and concluded that, even though Martinez was not a supervisor, “DDR could nonetheless be found liable for negligently allowing Martinez’s discriminatory acts to cause Velazquez’s firing.” The case has been sent back to the district court for further proceedings.
Time will tell if this court’s decision will be widely adopted by other courts. Whether it is or not, employers should do the following to avoid a similar claim:
• Tell everyone in a management or supervisory position to take complaints of sexual harassment seriously. In my opinion, Albino’s response to Velazquez’s complaint about Martinez should have gotten him fired.
• Review all terminations made by managers, supervisors, and HR personnel to ensure they are not being made for personal reasons.
• Have all employees, including HR personnel, attend harassment prevention training, not just supervisors. You’d think as an HR professional Martinez would know not to retaliate against someone for rejecting her sexual advances, but I guess not.
• Monitor your company emails.
Love or attraction sometimes makes people do some stupid stuff. Employers who follow the above steps can help protect themselves from being harmed when that stupid stuff happens between employees at work.
