November 13, 2020

When Odd and Uncomfortable are Unlawful

An employee complained to her manager about the COO’s behavior that she felt was odd and made her uncomfortable. She did not file an internal complaint of harassment, but her manager did.  When she was interviewed about the incident, she stated that she did not think that she had been subjected to sexual harassment.

But when the employer fires her she files a claim of unlawful retaliation. The employer’s defense is that she did not engage in any protected activity so could not be protected under Title VII’s no retaliation provision.  She did not file a complaint. And, when asked, she did not feel she had been subjected to any unlawful conduct.

The court disagreed.  Why? (1) She gave an “ostensibly disapproving account” of the incident; (2) the conduct was “sexually obnoxious;” (3) she conveyed her feelings through internal channels; and (4) others reasonably perceived the conduct as possibly unlawful since they felt an internal investigation was warranted.

Lessons Learned? Forget the law (for a moment); it is a secondary issue.  This is an employee relations issue as much as it is a legal one. Whether an employee is legally protected or not, don’t take an adverse employment action for purely personal reasons.  Employees may say or do things that make you mad.  Don’t act on your emotion. Use HR as your sounding board. Get a second opinion.