May 24, 2021

When HR is Married to the Boss

This case is really about same-sex harassment and the legal standard of proof. But I thought this subtle spin in the case made the above headline more interesting and provided some practical tips and insight.

In 1998, the U.S. Supreme Court (“SCOTUS”) held that same-sex harassment was actionable under Title VII if one of three conditions were met. In a recent case of same-sex harassment, the plaintiff initially lost his case because the lower court found none of the three conditions was met. On appeal, the 4th Circuit effectively said, “not so fast.”

The 4th Circuit opinion was that SCOTUS’ three examples in 1998 were not exclusive or the “only routes by which a plaintiff could prove a same-sex, sexual harassment claim.”

Lessons Learned? This case dealt with an employee who alleged he was subjected to a hostile work environment by male coworkers and his male supervisor based on his sex. The conduct to which he was subjected was way beyond unkind. Being repeatedly called “gay” was the mildest of offenses. I’ll leave it at that. This case was so preventable.

1. Don’t just listen; do something! The court found the employee reported his harassment to at least three people; two supervisors and HR. But the harasser was not “disciplined or counseled and his harassment…continued.” When an employee expresses a concern about harassment, act on it. Look into the allegation and document your efforts and findings. Talk to your company’s legal counsel about how and by whom that should be done.

2. Avoid conflicts of interest. In the case, the HR Manager was married to the Company’s CEO. The plaintiff alleged that inferred the CEO also knew about his complaint. While this court disagreed, it raised a valid question. When HR is married, related to, or in the chain of command of the alleged harasser, HR should be recused from the process. Consider including a resource in your policy that gives employees another person to whom they can report concerns if they are not comfortable reporting to HR. This is a great example where a compliance hotline might have been well worth the expense.

3. Retaliation. This employee also sued for unlawful retaliation when he was fired three months after he complained to the HR Manager. If there is no other evidence to support a retaliatory motive, is three months too long to create a reasonable inference of a causal connection between his complaint and his being fired? Click here for that story!