Company Gets Burned By Off-Duty Co-Worker Retaliation

(Published July 15, 2008)

 

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

 

Retaliation is typically thought of as something that is triggered by an employee's complaint and carried out by a supervisory employee.  Now, the question is whether a company can be held liable if retaliatory acts are carried out by the complaining employee's co-worker.  The answer, surprisingly, is that an employer can be held responsible for retaliation by a co-worker if you have knowledge of the retaliatory behavior and do nothing about it — even if the behavior occurs outside of work.

 

Liar, Liar, Car's On Fire 

Rina Barclay entered the office of her manager, Mark Aguila, and closed the door.

 

"Mark, I need to talk to you about Brian Young," Barclay said. "I have reason to believe that Brian set fire to my car while it was parked outside my house."

 

Aguila was shocked. "What makes you think that Brian had anything to do with it?"

 

"Bad things happen to the women who complain about his harassing conduct," Barclay remarked. "And it is no coincidence that I filed a complaint against him just a few weeks ago."

 

"What kind of bad things are you talking about?" Aguila questioned.

 

"A couple of years ago, he sideswiped  the car of an employee who accused him of harassment," Barclay responded. "And more recently, he slashed all four tires of another employee after she threatened to report him."

 

"Do you have any evidence that Brian had anything to do with those incidents?" Aguila asked.

 

"No, but I know for a fact that a lot of women are intimidated from reporting his behavior because they know what he is capable of," insisted Barclay. "I'm telling you…he was the one who set fire to my car."

 

"Without proof, you should not make allegations against Brian," Aguila cautioned. "You could be sued for slander for making such accusations."

 

"At the very least, are you going to discipline him for harassing me?" Barclay pressed.

 

"I spoke to Brian about your harassment complaint, but he denied the allegations," Aguila replied.

 

It wasn't until two more employees came forward some time later that Aguila began an investigation and eventually terminated Young. The company even hired an investigator to monitor him during the grievance process and offered the women security. One of the women denied the offer and her house was set on fire the following month.

 

Retaliatory Conduct Comes Under Fire 

Barclay sued the company for sexual harassment and retaliation based on Young's alleged acts. A district court dismissed her claim, but a court of appeals resurrected it. Although the appeals court declined to determine whether conduct occurring away from the workplace could be considered sufficient to form the basis for a valid hostile environment claim, it did rule that it could be considered in a co-worker retaliation claim.

 

Specifically, the court of appeals ruled that an employer can be held liable for retaliation by a co-worker if:

• The co-worker's retaliatory conduct is sufficiently severe that it would dissuade a reasonable worker from making or supporting a charge of discrimination. Employees were allegedly intimidated from reporting Young because of the bad things that happened away from work to those who complained about him.

Retaliation response: Don't ignore reports of intimidating behavior just because they occur outside the workplace. Such conduct should be taken seriously, regardless of where it happens. Even absent hard evidence, repeated reports of such conduct can be used to support an employee's retaliation claim.

• Supervisors or members of management have actual or constructive knowledge of the co-worker's retaliatory behavior. Barclay told Aguila that she suspected Young of setting fire to her car and informed him of other specific instances of retaliation.

Retaliation response: Don't let any retaliation accusations go unchecked. Question the accused and remind him/her of your company's anti-retaliation policy. Make it clear that any conduct that could be considered retaliation won't be tolerated and subsequent complaints could lead to further discipline.

• Supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to an employee's complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances. Aguila initially failed to investigate Barclay's complaint and discipline Young in any way despite repeated reports about his harassing and retaliatory conduct.

Retaliation response: When you receive multiple complaints about the same employee, take prompt and remedial action to investigate, even if the employee denies the allegations. Don't condone the behavior by ignoring the complaints, especially since the accused's conduct toward other employees may be introduced into evidence.

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