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Employment Law Blog
James Tarquin, P.A
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Proving Retaliation When The Subject Of A Sexual Harassment Complaint Targets The Victim For Termination

Employment termination

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from retaliating against employees for opposing any practice made an unlawful employment practice under Title VII.  Under long standing law, an employee who makes an internal complaint of sexual harassment is protected from retaliation by Title VII.  Having represented employees victimized by retaliation for complaining about sexual harassment for more than 15 years, our Central Florida retaliation attorneys have learned that employees who are the subject of a complaint of discrimination or harassment sometimes target the complaining employee for termination by feeding information to management that is intended to cause the termination of the complaining employee.  The decision by the U.S. District Court for the Western District of New York in Welch v. Bill Cram, Inc., 2017 3676040 (W.D. N.Y. Aug. 25, 2017) illustrates that management’s reliance on information provided by the employee who was the subject of a discrimination or harassment complaint can be used to prove a retaliatory discharge.

In that case, Christopher Welch (Welch) brought claims for sexual harassment and retaliation pursuant to Title VII against Bill Cram, Inc. (Company).  Welch had been employed by the Company as a parts clerk.  Welch alleged that he was sexually harassed by his male supervisor.  Welch claimed that the supervisor’s sexual behavior towards him included groping his buttocks, rubbing his genitals into his buttocks, and rubbing his shoulders.  Welch alleged that when he told his supervisor to stop engaging in these types of behavior, the supervisor told him that if he complained about them, the supervisor would have him fired.

Welch ultimately complained to the owner of the Company about the supervisor’s sexual behavior, as well as the supervisor’s threats to fire him if he complained.  Welch asked to be transferred to another department so he would not have to interact further with the supervisor.  The owner told Welch that she would look into it and get back to him.  The next day, Welch observed the owner and the supervisor having a conversation in hushed tones.  About five minutes later, the supervisor told Welch that the owner wanted to see him in her office.  With the supervisor present, the owner told Welch that it was “not working out for him” and she was “going to have to let him go.” 

The Company filed a motion with the trial court seeking dismissal of Welch’s sexual harassment and retaliation claims.  In doing so, the Company asked the trial court to find that Welch’s claims failed as a matter of law and Welch was prohibited from presenting his claims to a jury.  The trial court denied the Company’s motion for dismissal and found that Welch’s claims must decided by a jury.

Alleged Harasser Gives Information Used To Fire Victim

In finding that Welch’s retaliatory discharge claim must be resolved by a jury, the trial court attached great weight to the owner’s admission that she terminated Welch solely on the basis of information provided by the supervisor about Welch’s alleged poor work performance.   Although Welch was fired because of an alleged poor work performance, the owner admitted that the Company had a progressive disciplined policy and Welch never received a verbal or written warning prior to his termination.  The supervisor further admitted that he never issued Welch a warning about his allegedly poor work performance.  Thus, as the trial court recognized, the only evidence regarding Welch’s alleged poor work performance was the information provided to the owner by the supervisor.  Under such circumstances, the trial court concluded, a jury could easily find that Welch was fired in retaliation for complaining about sexual harassment.

Employer Liability For Retaliatory Information Flow

The decision in Welch illustrates that an employer can be held liable for retaliation when an employee who was the subject of a discrimination or harassment complaint provides information that is intended to cause the termination of the employee who complained about discrimination or harassment.  Imposing liability on an employer depends on the circumstances surrounding the information provided by the employee who was the subject of a discrimination or harassment complaint, including whether the information was false or misleading, whether the employer conducted an independent investigation into the information, whether the information is consistent with company policies, and whether the employer obtained the victim’s version of events before the termination occurred.  To establish liability, the employee claiming retaliation must also show that the information provided by the employee who was the subject of the discrimination or harassment complaint did in fact cause his or her termination.

In Welch, there was little doubt that the supervisor desired Welch’s termination because of his repeated threats to fire Welch if he complained about the sexual behavior.  The information provided by the supervisor was inconsistent with company policy because Welch had never received a verbal or written warning about his alleged poor work performance as required by the Company’s progressive discipline policy.  Moreover, the owner in Welch never spoke with Welch about his version events before terminating his employment.  Welch could also establish that the information provided by the supervisor did in fact cause his termination because the owner admitted that she fired Welch solely on the basis of the information.  By relying on information tainted by the supervisor’s retaliatory motive, the Company could not escape liability for retaliation because the owner was not personally motivated by retaliation.

Consultation With Central Florida Retaliation Attorneys   

Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience representing employees who have been retaliated against for complaining about discrimination or harassment in the workplace.  If you have been retaliated against, or have questions about your protection from retaliation when complaining about discrimination or harassment, please contact our office for a free consultation with our Central Florida retaliation attorneys.  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. 

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