Adding insult to injury in the case of sexual harassment in the workplace can spell out liability for the employer. In other words, never encourage a victim of sexual harassment at your company to quit.
In the late 1990’s the US Supreme Court made clear that employers are responsible for the harassment actions of their employees in supervisory positions. The policy behind the decision is meant to encourage employers to act both to prevent harassment and to limit the damage done by harassment.
At the same time, the Court outlined the circumstances under which an employer would have an affirmative defense: when the employer acts reasonably to prevent and promptly corrects any harassment behavior and the employee fails to take advantage of the prevention and corrective measures offered by the employer.
But when an employer responds to a complaint of sexual harassment with the suggestion that the victim resign, not only will liability for the harassment almost certainly attach, but so too will liability for retaliation, another form of discrimination. Employment lawyers in Los Angeles can give you additional information.
A recent case illustrates just how important it is for employers to take care that their actions are above board.
In Dulaney v. Packaging Corp of America, a court heard evidence that Carla Dulaney was harassed and forced to comply with the sexual demands of a co-worker, Bobby Mills, who held a place of authority over her in the packaging plant in Virginia where they worked.
Mills would sometimes scream at her or send her home without paying her if she didn’t “take care of him.” Then Mills spread the rumor that Dulaney had a sexually transmitted disease.
When Dulaney complained to Mills’ direct supervisor about the rumors, she was told that her work was “replaceable.” Eventually Dulaney went to a higher-level supervisor and reported everything that was going on and Mills was terminated.
Subsequently, Dulaney was offered a severance package if she would turn in her resignation. When she declined to sign the agreement she was escorted off of the premises. Dulaney then sued her employer for sexual harassment.
Her employer testified that Dulaney had not really been fired, and that she had been invited back to work. As a result, the lower court dismissed the case. The 4th Circuit Court of Appeals reversed, however. Their decision hinged on the circumstances of Dulaney’s last day of work. In escorting her off the premises, a jury could find that the company’s intention was to terminate her.
The law is very clear that an employer will always be liable for harassment by a supervisor if the conduct results in an adverse employment action. Thus, it is never advisable for an employer to fire an employee as a result of their reporting sexual harassment or other discriminatory conduct.
If you are an employer concerned about your anti-harassment policies, or if you are an employee suffering harassment at the hands of a supervisor, employment lawyers in Los Angeles can help.