Managers, supervisors, group leaders, and any other person with supervisory oversight over employees should be clearly trained what to if any employee reports sexual harassment by another employee. It takes a lot of courage for women to report that they are being sexually harassed in the workplace. When these brave women do report that they have been the victim of sexual harassment, they should know that something will be done with that complaint.
In Alley v. Penguin Random House, No. 21-3158, 2023 WL 2421713, at *1 (7th Cir. Mar. 9, 2023), Kristie Alley (not the Cheers actress), who worked in the management position of Group Leader, received a complaint from employee Marlene Guzman that Scott Lillard was sexually harassing her at work. Pursuant to a written policy, which Alley had received, Penguin required its Group Leaders as well as all managers and supervisors to report sexual harassment or employment discrimination complaints to the human resources (“HR”) department. Employees, on the other hand, could report being sexually harassed to their choice of: (1) their manager; (2) a department or division head; (3) a human resources representative; or (4) anonymously to the ombudsperson.
Alley did not report Guzman’s sex harassment complaint to HR. Instead, Alley took it upon herself to conduct her own investigation, including getting written statements. Confused as to why Alley was demanding written statements from them, two employees reported Lillard’s sexual harassment of Guzman directly to HR. Once HR got involved, it gathered all the information, including the statements taken by Alley; and the employer fired Guzman and demoted Alley to forklift operator because she failed to timely report the sexual harassment complaint to HR and put employees at risk by not doing so.
Alley sued under Title VII of the Civil Rights Act of 1964, alleging that she was retaliated against for participating in an investigation regarding a complaint of sexual harassment.
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Does Title VII protect me if I report sexual harassment?
Title VII not only prohibits employment discrimination based on race/color, religion, gender, national origin, sexual orientation, and gender identity, but also offers protection to employees against retaliation for reporting sexual harassment and other discrimination in the workplace. Here are a few notable cases that illustrate this protection:
- Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 US 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 – In this case, the United States Supreme Court held that Title VII’s anti-retaliation provision protects employees from any action that could dissuade a reasonable worker from making or supporting a charge of discrimination. This includes actions that do not affect the employee’s job, such as the employer giving negative job references.
- Crawford v. Metropolitan Government of Nashville and Davidson County (2009) 555 US 271, 129 S. Ct. 846, 172 L. Ed. 2d 650 – In this case, the Supreme Court held that an employee who cooperates with an internal investigation of sexual harassment is protected from retaliation under Title VII, even if she did not make a formal complaint.
- Vance v. Ball State University (2013) – In this case, the United States Supreme Court clarified who counts as a “supervisor” for the purposes of employer liability for harassment. The Supreme Court held that an employee will be considered a “supervisor” under Title VII if he/she/they has the power to take tangible employment actions against the plaintiff, such as firing or demoting, or if the employer has given the employee the authority to direct the victim’s daily work activities.
These cases demonstrate that Title VII protects employees from retaliation for reporting sexual harassment in the workplace. It is important to note that the specific facts and circumstances of each case can impact the outcome, and that it is always advisable to consult with an attorney for guidance on your individual situation.
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How do you prove a retaliation claim under Title VII?
To prove a retaliation claim under Title VII, an employee must produce evidence from which a reasonable juror could find that: (1) the employee engaged in a statutorily protected activity; (2) he/she/they suffered an adverse employment action; and (3) there is a causal link between the two. “The key question is whether a reasonable juror could conclude that there was a causal link between the protected activity … and the adverse action.” Rozumalski v. W.F. Baird & Assocs., Ltd., 937 F.3d 919, 924 (7th Cir. 2019).
More specifically regarding the third element: “An employee engages in a protected activity by either: (1) filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Title VII or other employment statutes; or (2) opposing an unlawful employment practice.” Northington v. H & M Int’l, 712 F.3d 1062, 1065 (7th Cir. 2013).
As to the third element, courts have held that relevant evidence may include suspicious timing, ambiguous statements of animus, evidence other employees were treated differently, or evidence the employer’s proffered reason for the adverse action was pretextual. All of these causation factors are taken as a whole with no one factor controlling.
First, the United States Court of Appeals for the Seventh Circuit held that Alley could not establish the first element as a matter of law:
To satisfy the first requirement of a retaliation claim, Alley argues that the steps she took to help Guzman report her allegations are statutorily protected activity. But they are not. … Alley did not actually report harassment; she failed to report harassment. Failing to report is not a protected activity under Title VII. Whatever her motivation in undertaking her own investigation instead of taking the report to HR, her conduct simply is not statutorily protected activity. Thus, Alley cannot satisfy the first requirement of a retaliation claim. … Penguin management independently learned of the allegations and asked Alley if she knew anything. Only then did Alley come forward and admit that Guzman had reported these allegations to her as well.
Id. at *2–3.
Just to be safe, the Seventh Circuit Court of Appeals further held that Alley could not meet the third element of a Title VII retaliation claim:
even if Alley did engage in a protected activity by attempting to help Guzman report, there is still insufficient evidence to reasonably conclude that Penguin retaliated against her. Although suspicious timing “can sometimes raise an inference of a causal connection” between an employee’s protected action and an adverse employment action, there is nothing suspicious about the timing of Alley’s demotion. Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 1021 (7th Cir. 2016). When “there are reasonable, non-suspicious explanations for the timing” of the defendant’s conduct, proximity in time is not enough to support a retaliation claim. Terry v. Gary Cmty. Sch. Corp., 910 F.3d 1000, 1008 (7th Cir. 2018). Here, there is a perfectly reasonable explanation for the timing of Alley’s demotion: Penguin learned of her failure to comply with her obligation to report sexual harassment allegations and demoted her eight days later, after concluding its investigation.
Id. at *3.
Although Alley’s heart may have been in the right place, by no turning the sexual harassment complaint over to HR, she did not engage in protected activity and thus, was not protected from retaliation under Title VII. Moreover, because Alley broke clear rules, regardless of her intent, her demotion was easily attributed to that violation by the Court.
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What should I do if I was fired for reporting sexual harassment to my manager?
Best Employment Lawyer Answer: If you were wrongfully terminated because you reported sexual harassment to your manager, supervisor, boss, or HR, you need to consult an attorney to learn what your best legal options may be. To that end, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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