Retaliation Claims: Court Rules Employers May Now Be Sued When Co-Workers Retaliate; 3 Important Steps To Prevent Lawsuits

It may come as a surprise that employers can now be sued if co-workers harass an employee who has made a workplace complaint. A recent Ninth Circuit Court of Appeals decision has broadened the liability of employers for retaliation to include not just supervisors’ acts, but also the hostile conduct of other employees. We’ll offer some practical tips to reduce the risk of this kind of lawsuit.

Sexual Harassment Complaint

Joanne Fielder, a United Airlines customer service representative in Oregon, complained to the company that a male co-worker had sexually harassed her. His misconduct allegedly included unwanted touching, public requests for sexual favors and obscene phone calls.

After Fielder filed a charge with the police, the harasser was placed in a criminal diversion program and ordered to stay away from her.

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Fellow Workers Retaliate Against Victim

Fielder said United told her not to discuss the harassment claim with other workers. But because the accused harasser never received such an admonition, he was able to talk about the charge and apparently convince co-workers he didn’t do it.

Several of those co-workers then allegedly tried to get back at Fielder for making the claim. For example, at a United sexual harassment training seminar, an angry male worker reportedly exploded and publicly accused Fielder of fabricating her harassment complaint.

Fielder also charged that her peers shunned her, wouldn’t answer job-related questions and refused to help her load baggage, making it difficult to perform her duties.Although Fielder said she repeatedly told her supervisor about her co-workers’ hostility, he allegedly did nothing to protect her. Fielder also asked for transfers to other work sites, but she claimed her requests were ignored.

Workers’ Acts Create Liability

Fielder ultimately went on medical leave and sued the airline for retaliation. United responded that Fielder’s charges should be thrown out because she waited too long to sue. But the court said because of the continuing nature of the alleged retaliation, Fielder was entitled to a trial.

The court went on to rule that employers can be liable for the actions of nonsupervisory personnel directed against an employee who filed a harassment complaint if steps are not taken to prevent the retaliation. The court explained that illegal retaliation includes situations in which co-workers who weren’t involved in the original complaint create a hostile work environment for the complaining employee.

How To Prevent A Lawsuit

Here are three ways to reduce your risk that a harassment complaint will escalate into a dispute with other workers—and a lawsuit:

 

1. Demand confidentiality. Although it’s impossible to keep a tight lid on workplace complaints, warn all employees and supervisors involved in the complaint process not to discuss the matter with other workers. This includes both the person who makes the complaint and the one accused of harassment. In this case, word of Fielder’s charges spread throughout the workplace, prompting other employees to take sides against her.

    

2. Enforce anti-harassment policy. Have in place a strong policy against sexual harassment and make it clear that retaliation won’t be tolerated, including actions by workers who weren’t involved in the original incident. And take prompt disciplinary steps if you learn that employees are harassing a co-worker.

    

3. Protect the victim. Shield complaining workers from harassment by providing transfers and shift changes when necessary. In this case, Fielder’s supervisor allegedly refused to allow her to transfer, while failing to stop her co-workers’ hostile acts even after repeated requests.