May 8, 2020

Is an employer safe from an employee’s claim of retaliatory discharge even without knowing about an employee’s prior harassment complaints?  No.  Based on a California Court of Appeal decision, an employer’s ignorance of prior employee harassment complaints will not necessarily insulate the employer from liability for retaliatory discharge.

Facts of the case:  An employee (Mr. X) complained to the store manager that two other male employees were harassing female workers.  The store manager allegedly sought to trivialize the complaints and never notified human resources about Mr. X’s complaint.  A few months later, in a separate incident, Mr. X allegedly shoved a female co-worker, used abusive language, and came to the store smelling of alcohol.  The store manager initiated an investigation concerning Mr. X. Once the investigation was complete, the district manager terminated Mr. X for his conduct.  The district manager never reviewed Mr. X’s personnel file.

Arguments:  Mr. X sued, claiming he was terminated in retaliation for his sexual harassment complaint.  The employer claimed it had a legitimate reason for firing Mr. X and that the district manager who made the termination decision didn’t even know about the prior harassment complaints.

Outcome:  The court ruled in favor of Mr. X.  The court reasoned that ignorance of a worker’s protected activities does not provide a complete defense to retaliation unless everyone who contributed to the adverse employment decision was unaware of the protected activities.  In this case, while the district manager was unaware of Mr. X’s prior complaints, she was not the only person who contributed to Mr. X’s discharge. Here, the store manager’s conduct could also be considered retaliatory.  Failing to speak to Mr. X about the shoving incident, relying solely on accounts from employees implicated in Mr. X’s sexual harassment complaint, and failing to conduct an unbiased security investigation, all indicated that the store manager’s conduct was retaliatory.

What you should do:  To avoid facing the above problem, employers should take the following investigatory steps:

1.  Fully review all disciplinary recommendations.  Prior to terminating or disciplining an employee, make sure you conduct a thorough investigation of all the circumstances regarding that decision.  In other words, avoid simply “rubber-stamping” disciplinary recommendations.

2.  Interview the relevant parties.  You should compile a list of the individuals to be interviewed.  Most importantly, the person who brings the complaint should be thoroughly interviewed.  During the interview process, it is important to tell the individuals that the allegations are being taken seriously and that the goal is to come out with the fairest result possible.

3.  Keep complete records.  As with any investigation, the more information you have as an employer, the better prepared you will be later to justify your adverse employment decisions.  Make sure these records are dated, legible, and kept in a confidential file.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.