Sex Discrimination case hinges on who complained.

by on December 12, 2008 · 0 Comment POSTED IN: HR Info Center

Was it retaliation if she didn’t complain about Sex Discrimination?

“We didn’t hire you full time because two other applicants had more experience than you,” HR director Paula Dickerson said into the phone.

On the other end of the line, Annie Parker seethed.

“I have plenty of experience,” she said. “Three years’ worth as a temp with you. So forgive me if I don’t buy that.

“It wouldn’t have anything to do with those complaints about Keith Ennis, would it?” Annie went on.

“Not a thing,” Paula replied. “You mean Barry Moore’s complaints about Keith?”

“Of course that’s what I mean,” Annie said. “I told Barry what Keith said about me, and he didn’t like it. He thought it was sexist crap, especially coming from a supervisor.”

Taking her part

“We listened to what Barry had to say, investigated, and did what we considered appropriate,” Paula said.

“Sure, giving Keith an oral reprimand was appropriate after he called me an ugly sow and talked so dirty time after time,” Annie said indignantly. “I bet he’s saying something hateful about one of the other girls right now, that’s how much of an impression you made on him.”

“I’m not going to prolong this conversation,” Paula said. “You never complained personally. You only approached Barry, who took your part.”

“Stay on the line long enough to hear this,” Annie said. “I’m gonna sue your butts for retaliation. You didn’t like getting complaints about one of your own because of a mere temp, and you penalized me for it.”

Annie did sue, for sex discrimination and retaliation. Did she win?

The decision

No, Annie didn’t win. The court threw her sex discrimination case out.

Retaliation, the court said, has to do with an employee personally complaining about sex discrimination. But in this case, it was co-worker Barry, not Annie herself, who complained about her being harassed by Keith, the supervisor.

In other words, an employee isn’t protected against retaliation when she’s the unknowing subject of somebody else’s grievance. Annie didn’t even know Keith had made the “ugly sow” remark until Barry complained about it and then told her.

Drawing a line with Sex Discrimination and Retaliation Claims

This ruling is good news for employers looking for lines to draw in the fight against retaliation complaints. These can be very tricky, because employees don’t have to prove they were discriminated against – only that they genuinely believed they were, complained, and were punished.

Now at least, you know friends’ complaints on an employee’s behalf don’t set you up for retaliation. But you still need to investigate such a complaint as seriously as a direct one.

Cite: Clark v. Johanns, No. 05-4029, 8th Cir., 8/28/06. Fictionalized for dramatic effect.

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