Best Ohio Sexual Harassment Attorney Answer: What happens when the person who is sexually harassing me at work is my direct supervisor? Who should I report my boss’s sexual harassment to at work? Do I have to complain in writing to stop the sexual harassment? Will I be legally protected against unlawful termination if my supervisor fires me or causes me to be fired for refusing to have sex with him?
Let’s start with the basic premise that sexual harassment is wrong. It is also illegal under Ohio Revised Code Section 4112.02 , and Federal laws, such as Title VII of the Civil Rights Act. These employment laws provide legal protections against employment discrimination, sexual harassment. These employment laws also protect employees from being and retaliation. Yet, despite this being a clear principal of law, employment attorneys are regularly met by employees that come in after being fired by their employer for reporting their boss, manager or supervisor for sexual harassment. This means that HR or some higher level boss chose to keep the sexually harassing employee over the employee that was committing the sexual harassment.
If you feel like you are the only one facing this type of situation, you are not.
Let’s look at a recent example in the case against New Breed Logistics, which was recently decided by the Sixth Circuit Court of Appeal (which covers Ohio).
New Breed is a national company which conducts business as a supply-chain logistics provider. The Complaint alleged that James Calhoun (the bad guy in this story), a supervisor for New Breed, sexually harassed and retaliated against three female New Breed employees, and also retaliated against a male employee for New Breed for the male employee having agreed to serve as a witness for the three female employees.
Each of the four terminated employees sued New Breed claiming that the reasons provided for their terminations were merely pretextual and that they were actually terminated in retaliation for having reported Calhoun’s acts of sexual harassment. The four Plaintiffs in this case asserted that by and through the actions of Calhoun, New Breed had violated Title VII of the Civil Rights Act which resulted in the employees’ wrongful termination.
At the conclusion of the seven-day trial before the United States District Court for the Western District of Tennessee Western Division, the jury found New Breed liable under Title VII of the Civil Rights Act for Calhoun’s sexual harassment and retaliation and awarded all four employees compensatory and punitive damages totaling over $1.5 million dollars.
Following the jury’s verdict, New Breed appealed the decision of the U.S. District Court to the United States Court of Appeals for the Sixth Circuit and asserted that the jury could not have properly found against it because neither of the three female employees engaged in “protected activity” prior to their termination. In other words, New Breed argued that reporting the harassment to the harasser himself (i.e., to Calhoun) does not qualify as a protected activity for purposes of supporting a claim of retaliation. Thus, the pertinent question as to this issue was: whether complaints or objections made to the accused harasser constitute protected activity to support a retaliation claim.
The theory of liability upon which New Breed can, and should, be held liable for the termination of the three female employees in this case has become known as “cat’s paw liability.” A cat’s paw theory of liability provides that an employer will be found to be vicariously liable for a supervisor’s harassment of an employee under the supervisor’s authority when the harassment results in tangible employment action. Thus, in order to prevail on a cat’s paw theory of liability, the plaintiffs in this case merely had to show that Calhoun’s retaliatory motivation for having the plaintiff’s fired influenced any of the personnel at New Breed that ultimately made, and/or otherwise approved the decision to have the plaintiffs fired in this case. (For more on the Cat’s Paw see also Top Employment Lawyer Reply: Do I Have A Claim If I Was Fired By HR And Not By My Racist Boss?)
During the trial, each of the three women testified that Calhoun would make sexual comments to them on a regular basis and each testified that they verbally and expressly told Calhoun to stop harassing them. The male employee witnessed and overheard Calhoun’s harassment towards female employees and further that he had verbally admonished Calhoun for his behavior toward the three women. Evidence was further adduced at trial to demonstrate that Calhoun was directly or indirectly involved in each employee’s termination. In fact, evidence showed that Calhoun actually took credit for getting two of the four plaintiffs fired.
In considering the entire record before it, the Sixth Circuit Court of Appeals first determined that the employee complaint to the harassing supervisor is a protected activity covered by Title VII. With that question of law being decided, the Court then went on to find that the evidence adduced at trial, e.g., that all four complainants requested Calhoun to stop the sexual harassment, and that New Breed’s decision of terminating these four employees was influenced, at least in some aspect[s], at Calhoun’s behest. Accordingly, the Sixth Circuit Court of Appeals held that the District Court did not err in concluding that there was evidence sufficient to support the jury’s verdict on the retaliation claim as to the protected activity prong and affirmed the District Court’s judgment. Specifically, the Sixth Circuit Court of Appeals held:
New Breed contends that neither Hines, Pearson, nor Partee engaged in protected activity before their terminations. Specifically, New Breed argues that the act of telling Calhoun to cease his harassment does not constitute protected activity under Title VII. The district court rejected this argument, holding that protected conduct “can be as simple as telling a supervisor to stop.” R. 269 at 21-22, Page ID# 7137-38. Because we have not ruled on whether a complaint to the harassing supervisor constitutes protected activity, the district court relied on the reasoning of two district court cases in support of its conclusion. See Berthiaume v. Appalachian Christian Vill. Found., Inc., No. 2:07-cv-46, 2008 WL 4138112, at *4 (E.D. Tenn. Sept. 4, 2008) (“[A]n employee has `engaged in the most basic form of protected activity when she told her supervisor. . . to stop his offensive conduct’“ (quoting Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000))); Reed v. Cracker Barrel Old Country Store, Inc., 133 F. Supp. 2d 1055, 1070 (M.D. Tenn. 2000) (“[A] plaintiff who tells her immediate supervisor that he must stop sexually harassing her, is `engaging in the most basic form of protected conduct; namely, telling a harasser, who was also serving as her supervisor, to cease all forms of physical and verbal harassment.’“ (quoting Quarles v. McDuffie Cnty., 949 F. Supp. 846, 853 (S.D. Ga. 1996))).
New Breed contends … we should adopt a rule that concludes that resisting a harasser’s advances or talking back to a harasser is not protected activity under Title VII’s anti-retaliation provision. …
The language of the “opposition” clause of Title VII’s anti-retaliation provision states that “it shall be an unlawful employment practice for an employer to discriminate against any . . . employee[] . . . because [the employee] opposed any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a). In Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee, the Supreme Court held that “[t]he term `oppose’ being left undefined by the statute, carries its ordinary meaning: `to resist or antagonize . . .; to contend against; to confront; resist; withstand.’“ … Consistent with this expansive definition, we have held that “[t]he opposition clause protects not only the filing of formal discrimination charges with the EEOC, but also complaints to management and less formal protests of discriminatory employment practices.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). We have also given “great deference” to the EEOC’s interpretation of “opposing” conduct as “including complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579, 580 n.8 (6th Cir. 2000).
Applying these broad definitions, we conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed. Warren v. Ohio Dept. of Public Safety, 24 F. App’x 259, 265 (6th Cir. 2001) (“Under the opposition clause, . . . [t]here is no qualification on who the individual doing the complaining may be or on who the party to whom the complaint is made.”). Therefore, it would be unfair to read into the provision a requirement that a complainant only engages in protected activity when s/he opposes the harassment to a “particular official designated by the employer.” See Ross v. Baldwin Cnty. Bd. of Ed., No. 06-0275, 2008 WL 820573, at *6 (S.D. Ala. Mar. 24, 2008) (“It would be anomalous, and would undermine the fundamental purpose of the statute, if Title’s VII’s protections from retaliation were triggered only if the employee complained to some particular official designated by the employer.”).
Based on the preceding, employees who find themselves in similar situations should continue to report incidents of sexual harassment, or acts of discrimination to their employer. While this case confirms that reporting the harassment to a supervisor who is also the harasser is a sufficient form of reporting harassment and constitutes a protected activity under Title VII, this case also makes clear that employees in these types of situations would also be wise to report the harassment to another, non-offending, supervisor or manager, as well as to the human resources department. However, as the Sixth Circuit Court of Appeals demonstrated above, employees who have only reported incidents of harassment to the offending supervisor and who have already experienced an adverse employment action – such as a reduction in hours, a reduction in responsibility, an unpaid suspension, or termination – can and will be protected by the law.
If you find yourself the victim of such an instance of unfair or discriminatory employment practices, you should seek the legal counsel of a qualified lawyer. Sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws. Sexual harassment is a form of gender discrimination. If you feel that you are being sexually harassed or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. At Spitz, The Employee’s Law Firm, you will meet with a sexual harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. Sexual harrassment is a form of gender discrimination, and employers should be held accountable if they discriminate against female workers in any fashion – but particularly for sexual harrassment. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from sexual harassment and gender discrimination.
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