Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP, explains through three tongue-in-cheek soap opera storylines how sexual harassment claims can morph into retaliation liability.
Like sands through the hourglass . . . so are the days of our work lives.
You have an employee, Daisy, who is honest as the day is long, but very sensitive. You find out that she reported you to Human Resources because you told her (in a nice, appropriate way) that you liked the dress she was wearing. Daisy reportedly told HR that your comment made her feel uncomfortable. Now HR has you in the office and is grilling you about it.
Because Daisy is honest as the day is long, you know she wasn’t trying to get you in trouble. If she said she was uncomfortable, she no doubt was.
No matter how freakin’ crazy that might be.
You finally escape the HR office, and go straight to Daisy’s desk. “Daisy! Why didn’t you tell me that you took offense at my compliment? You had to report me to HR? After this, I’ll never be able to trust you again.”
Your employee, Brandon, is a snake-in-the-grass. You find out that Brandon has reported you to HR for alleged sexual harassment over something that never happened. It’s a set-up — he’s reporting you only because he wants your job.
When HR calls you in for an interview, you let the HR manager have it. You call her a “politically correct social justice warrior.” You tell her that she’d darned well better clear your name — otherwise, “no option is off the table.” (You really mean only that you may think about hiring a lawyer, but you say it in a threatening tone that implies something much worse.)
You and your direct report, Sheila, have worked together many years and have always had a good platonic relationship. Lately, you’ve been having difficulties with your marriage, and as the difficulties increase, Sheila has become increasingly attractive to you. Finally, on a business trip after a couple of drinks, you start sobbing and tell Sheila that you are in love with her. Sheila gently tells you that she isn’t interested. You never touch Sheila or say anything explicitly sexual to her.
The next morning, over coffee, you apologize to Sheila, and she says she accepts and not to worry about it. On the trip home, everything is strictly business.
When you’re back at the office, your HR manager asks to meet with you. Sheila has paid him a little visit.
You sign your final warning, and go home. Your wife is out of town, and it’s just you and the dog. You have a few drinks. Then you start thinking about Sheila. You call her cell, and she doesn’t answer. Then you start texting her:
“Just tried calling u”
“Plz call me back?”
“I’m sorry I just want things 2 B like they were before.”
“Why did u go to HR?”
“I thought we were friends”
“Plz – I want 2 b friends again”
“Why did u stab me in the back?”
And, although such a thing would not seem possible, it goes downhill from there.
In each of these “soaps,” it’s doubtful that you are actually guilty of sexual harassment. In the first story, all you did was compliment Daisy about her dress — in an appropriate, professional way. In the second, you didn’t do anything wrong — you were the victim of a frame-up by that dirty, rotten, no-good Brandon. In the third story, sure, you were drunk and sloppy and stupid, but it’s not at all clear that one drunk-and-sloppy encounter in which no sexual talk or touching occurred would be enough for a claim of sexual harassment.
And, yet, in each case, you could still be in big trouble — not for sexual harassment, but for retaliation. Let’s look at each soap one by one.
All My Sensitivities: Daisy, bless her heart, made a complaint about your behavior, which she honestly perceived as sexually harassing. That’s arguably legally protected activity. You were her boss, and after you found out about her complaint, you went to her desk, challenged her, and told her you couldn’t trust her any more. Even though Daisy was wrong about the sexual harassment, you may very well lose on a retaliation claim.
As the Worm Turns: Dirty rotten Brandon fabricated a sexual harassment complaint about you. That is not protected activity. The trouble is, when you got mad, you didn’t take it out on Brandon — you threatened the HR manager, who was only doing her job by trying to investigate the allegations Brandon had made. Not cool.
Young & Reckless: Even though Sheila told you that she accepted your apology, that doesn’t mean she hasn’t made a legally protected complaint. She may have been agreeable at the hotel because you were her supervisor and she was trying to avoid a confrontation — or a recurrence. Your texts could be viewed as not just sloppy-drunk-and-in-love but threatening and retaliatory. (And maybe you should do something about that drinking.)
It’s possible to have a valid retaliation claim based on an underlying complaint that has no merit. That’s because even mistaken or meritless complaints are usually protected as long as the complaints were made in good faith. Even if the complaint was made in bad faith, you can be liable if you retaliate against the person who is trying to investigate, or who merely communicates to you that a complaint has been made.
In other words, even if you win, you can still lose. This is why HR will tell you (if you’re the accused) to have no contact with the accuser except as necessary to carry on the company business. HR is looking out for you both.
Tune in tomorrow . . . (well, next week)