Suppose a supervisor retaliates against an employee who complained about sexual harassment by initiating a disciplinary investigation against the employee. The employee is ultimately terminated for disciplinary reasons and sues you for retaliation. Can you claim you’re not liable because the person who made the termination decision didn’t know about the harassment complaints? Not according to a new decision.
Employee Complains About Harassment
William McLeod Reeves, a Safeway Stores clerk in Santa Clara county, complained to store manager Fred Demarest that two male employees—the night manager and employee Brian Sparks—were harassing female workers. Demarest allegedly seemed resentful and sought to trivialize the complaints, telling Reeves that women weren’t “such pure innocent things” as Reeves supposed, and that unless the “gals” complained directly to Demarest, “the problem exists between [Reeves’s] ears.” Demarest never notified human resources about Reeves’s complaint.
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Misconduct Leads to Discharge
In an incident a few months later, Reeves allegedly shoved a female co-worker, used abusive language, and then came to the store smelling of alcohol. Sparks said he saw Reeves push the employee, but Reeves denied he touched her.
Store manager Demarest asked Safeway’s security department to investigate. A few weeks later, security officer Darrell Harrison called the district manager, recommending that Reeves be discharged. The district manager immediately terminated Reeves for violating company policy and/or procedures on the grounds that the company doesn’t “allow one employee to push another employee, period.” The district manager never reviewed Reeves’s personnel file and made her decision based solely on her phone conversation with Harrison.
Employer Denies Retaliation Charges
Reeves sued, claiming he was terminated in retaliation for his sexual harassment complaint. Safeway argued it had a legitimate reason for firing Reeves. What’s more, Safeway contended, because the district manager who made the termination decision didn’t know about the prior harassment complaint, Reeves couldn’t show that his discharge was retaliatory.
Decision-Maker Not Really Neutral
A California appeal court rejected Safeway’s arguments. According to the court, ignorance of a worker’s protected activities doesn’t afford an across-the-board defense to retaliation unless everyone who contributed to the adverse employment decision was unaware of the protected activities. In other words, employers are responsible where discriminatory or retaliatory actions by supervisors bring about adverse employment actions by others who may entirely lack discriminatory or retaliatory motive.
While the district manager who decided to fire Reeves didn’t know about the prior complaints, she wasn’t the only person who contributed to the discharge. Store manager Demarest’s conduct could be found to be retaliatory because he never spoke to Reeves about the shoving incident before calling security, instead relying on accounts from employees whom Reeves implicated in his sexual harassment complaint. And, Demarest put the investigation and discipline in motion, testifying that he knew referring the matter to security was almost certain to result in Reeves’ dismissal.
What’s more, the court pointed out, security’s investigation wasn’t truly independent but was heavily skewed to favor the tentative conclusions of Demarest that Reeves engaged in a terminable offense.
Avoid Rubber-Stamp Decisions
This case makes it clear that if there’s a discriminatory or retaliatory motive underlying disciplinary proceedings against a worker, you can be held liable for retaliation even though the ultimate decision maker knew nothing about any underlying problems. Thus, it’s critical for investigators and decision makers to avoid merely rubber-stamping disciplinary recommendations and to instead fully review the circumstances before reaching a conclusion.