Are Employees Protected From Retaliation When They Make An Informal Complaint Of Sexual Harassment?
Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from sexual harassment that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment. To enforce Title VII’s protection against sexual harassment, Title VII contains anti-retaliation provisions. Under Title VII’s anti-retaliation provisions, employees are protected from retaliation when they engage in statutorily protected activity under Title VII. Complaining about sexual harassment constitutes statutorily protected activity under Title VII.
Having long fought for the rights of employees who have been retaliated against for complaining about sexual harassment, our Citrus County, Florida retaliation attorneys have learned the employers frequently defend retaliation lawsuits by claiming that the employee did not engage in statutorily protected activity under Title VII because he or she did not follow the company’s policy for complaining about sexual harassment. In doing so, employers contend that in order to be legally protected from retaliation under Title VII, employees must follow their complaint procedure for reporting sexual harassment. If employees do not follow their complaint procedure for reporting sexual harassment, employers maintain, then they have not engaged in statutorily protected activity under Title VII and their retaliation claim fails as a matter of law. As with many employer arguments in the employment retaliation context, this argument is contrary to well-established law.
Protection From Retaliation When Making Informal Complaint
As explained by the U.S. Second Circuit Court of Appeals in Gregory v. Daly, 243 F.3d 687 (2d Cir. 2001), Title VII “protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management.” Thus, as observed by the U.S. District Court for the Eastern District of New York in Morris v. David Lerner Associates, 680 F.Supp.2d 430 (E.D. N.Y. 2010), “[a]n informal complaint to a supervisor about perceived discriminatory treatment is protected activity under Title VII.” The recent decision by the U.S. District Court for Oregon in Lanyon v. Interfor U.S., Inc., 2018 WL 1976023 (D. Or. April 26, 2018) illustrates that employers continue to argue that employees must comply with their company policy for complaining about sexual harassment in order to be protected from retaliation under Title VII.
Employee Victim Of Same-Sex Sexual Harassment
In that case, Robert Lanyon (Lanyon) brought sexual harassment and retaliation claims against his former employer, Interfor, Inc. (Interfor), pursuant to Title VII. Lanyon was employed by Interfor as a stacker operator at a sawmill. Lanyon was supervised by a male employee named Phillips. Lanyon claimed that Phillips subjected him to a sustained campaign of egregious sexual harassment. Lanyon alleged that Phillips repeatedly touched his buttocks, attempted to grab his genitals, and blew in his ear. Lanyon further asserted that Phillips repeatedly threatened to rape him and physically assaulted him. Lanyon claimed that the sexual harassment occurred “all the time.” Lanyon alleged that although he repeatedly complained to his supervisors and that supervisors observed Phillips’ offensive behavior, Interfor failed to remedy the situation.
Although Phillips admitted to engaging in inappropriate behavior throughout his employment with Interfor, Phillips contended that he was just “clowning around.” Interfor did not discipline Phillips until its Human Resources Department received a complaint from another male employee. Within a week of receiving the male employee’s complaint, Interfor fired Phillips.
Less than a month after discharging Phillips, Interfor discharged Lanyon. Prior to his termination, Interfor suspended Lanyon and placed him on a last chance agreement for behavior involving playing with a remote control truck and leaving work during a shift without clocking out. The last chance agreement stated that Lanyon would be discharged for a “further violation of any kind.” Before his termination, Interfor had laid Lanyon off along with several other employees. Interfor told Lanyon that his layoff was likely to be temporary. One day after being laid off, Lanyon admitted to confronting an Interfor superintendent. The confrontation took place away from work and the superintendent claimed that he feared for his safety. Interfor terminated Lanyon because of the incident.
Employee Did Not Have To Follow Company Policy
Interfor filed a motion with the trial court seeking dismissal of Lanyon’s retaliation claim. In doing so, Interfor asked the trial court to rule that Lanyon’s retaliation claim was meritless and Lanyon could not bring his retaliation claim before a jury. The trial court denied Interfor’s motion for dismissal.
In moving for dismissal, Interfor argued that Lanyon never complained about sexual harassment. Even if Lanyon complained to someone about sexual harassment, Interfor further argued, he never engaged in statutorily protected activity under Title VII because “he failed to follow proper procedure and never put Interfor on notice.” In rejecting this argument, the trial court explained that “complaining about sexual harassment” is a statutorily protected activity under Title VII and Lanyon “was not required to follow the proper protocol established by Interfor” to engage in statutorily protected activity under Title VII. Rather, the trial court pointed out, “informal complaints to supervisors will suffice.” Because Lanyon claimed that he complained to supervisors about Phillips’ sexually harassing behavior, the trial court found that “his informal complaints still constituted protected activity” under Title VI even if Lanyon did not “follow the procedure established” by Interfor for complaining about sexual harassment.
The trial court further found that Lanyon had produced sufficient evidence for a jury to conclude that he was fired in retaliation for complaining about sexual harassment. The trial court pointed out that “Lanyon engaged in protected activity mere months before being laid off and terminated.” The trial court also observed that Lanyon had evidence that “other employees who participated in similar activity [ ] were later fired.” From this evidence, the trial court concluded, a jury could find that “Interfor decided to fire Lanyon and other individuals who complained about Phillips to clean house.”
Free Consultation With Citrus County Retaliation Attorneys
Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience litigating employment retaliation cases, including cases where employees have been fired in retaliation for complaining about sexual harassment. If you have been subjected to retaliation for complaining about sexual harassment or have questions about your protection against retaliation, please contact our office for a free consultation with our Citrus County, Florida retaliation lawyers. Our employee rights law firm takes employment retaliation cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.
