Retaliation Station: When Harassment and Termination Claims Take Different Tracks

Last night, I read an Eleventh Circuit Court of Appeals decision in which the court tackled the tricky terrain of retaliatory harassment and termination claims under Title VII. The former is not something I encounter too often, and there was enough “there there” in this case to send the claim of retaliatory harassment to a jury.

Facts of the Case

The case involved a construction worker who reported harassment by his supervisor. Following his complaint, he was transferred to a new job site. And things got worse. Two new supervisors, one of whom was the son of the original harasser, threatened the worker’s job, physically attacked him, and even threatened to make him “disappear.” They also discouraged him from reporting these incidents further. Eventually, a third supervisor fired the worker after finding him asleep on the job. The worker claimed that the harassment and the termination were retaliatory actions in response to his initial complaint.

Harassment Claims Stay on Track

The appellate court reversed the district court’s summary judgment on the retaliatory harassment claim. Specifically, it concluded that what the plaintiff endured could dissuade a reasonable worker from making or supporting a discrimination charge — you think?!? —  and met the “adverse action” standard for retaliation claims, which is more relaxed than the standard for discrimination claims. The court emphasized that only the most “petty and trivial actions” would fail to meet this threshold, and the worker’s experiences were far from trivial.

Termination Claims Derail

On the other hand, the court did not revive the retaliatory termination claim. Getting caught sleeping on the job is a no-no. And the supervisor who caught him snoozing didn’t know about the plaintiff’s prior complaint and had no apparent retaliatory motive. Thus, there was no pretext.

One Key Takeaway for Employers:

Promptly Address and Monitor Reassigned Employees. When an employee is reassigned following a harassment complaint, follow up with them regularly to ensure that the complained-of behavior has ended. Regular check-ins and a clear reporting mechanism can help identify and address issues early, ensuring a safe and supportive work environment. Although, in this situation, there may be no amount of training that could have eliminated the mob mentality.

This case reminds employers that while they can defend against unfounded termination claims, they must also be vigilant in preventing and addressing retaliatory harassment.