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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Retaliation for Complaining About Sexual Harassment

A recent case (Westendorf vs. West Coast Contractors of Nevada, 2013 DJDAR 4258) highlights for us once again the importance of complaining to responsible corporate officials such as Human Resources (HR) or governmental agencies such as the Department of Fair Employment and Housing or the federal Equal Employment Opportunity Commission about sexual or other forms of harassment (age, sex, race, national origin, physical or mental condition, transgender, etc) while you are still employed. As Westendorf teaches, many times the underlying conduct, while unpleasant, may not satisfy the legal standards of severe or pervasive misconduct. Yet, if you the employee reasonably believe the sexual harassment was in fact illegal, and you are retaliated against for complaining, then you have stated a valid cause of action. This was not a California case, but the federal court relied on Title VII laws, which are equally valid in California.

In this case, Mrs. Westendorf complained about numerous incidents of sexual harassment, including having her job duties called “girly work”; references by managers to a women with large breasts (nicked named “double D”); asking her if the anatomical features of this co worker “intimated” her; whether women “got off” when using a certain feminine product; that women were lucky to get to have multiple orgasms; and, that plaintiff had to wear a French maid’s outfit while cleaning the trailer; that the F word was used several times. Despite all of this, the trial court dismissed the case for sexual harassment and the court of appeals agreed that the sexual conduct was not so severe or pervasive that it altered the condition of her employment or created a work environment that a reasonable person would consider hostile or abusive:

“We weight both severity and pervasiveness to evaluate whether a reasonable victime would think that sexual harassment had become a permanent feature of the employment relationship…To determine whether a hostile work environment claim is actionable, we condition all of the circumstances which ‘may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance,and whether it unreasonable interfere(d)’ with the employee’s work performance. Harris vs. Forklift Sys. Inc, 510 US 17, 23 (1993).

However, all was not lost for Ms. Westerndorf. The court of appeals reversed the trial court on the retaliation claim, finding that she had engaged in protected activity (complaining about what you and I and most reasonable folks would think was illegal sexual misconduct of primarily a verbal nature). As the court states: “Even though we have held that the evidence did not support Ms. Westendorf’s sexual harassment claim, we think that it could support a reasonable belief that she was subjected to actionable sexual harassment, and that she had such a belief.”

Much of the hoopla in the case for retaliation depended on whether she had been fired for complaints on just one day, or whether the trial court should have considered her other complaints leading up to that day. Her deposition testimony was considered ambivalent and the court of appeals faulted the trial court fof construing it strictly against her. (Just goes to show how important pre-deposiiton testimony can be).

Lessons learned: When you are confronted with behavior that feels intimidating and wrong, especially sexual harassment, complain respectfully to your manager, then slowly escalate to HR, Vice Presidents and ultimately the CEO or other outside agencies. You may not be retaliated against for complaining as long as a jury would find that you believed the law was violated.  In the right case, you will be rewarded with emotional and economic damages for the adversity of going through a termination or other losses such as demotions, unfavorable transfers, stigmatization, etc.