Seventh Circuit Allows Employer to Terminate Employee for Failing to Make his Internal Complaint of Sexual Harassment Quickly Enough After Harassment Occurred.

Earlier this month, the Seventh Circuit handed down a really disappointing decision in a sexual harassment and retaliation case.  The plaintiff  in Lord v. High Voltage Software, Inc. alleged that he had been sexually harassed by his male coworkers – both in the form of teasing about a supposed office crush and, more disturbingly, being repeatedly poked and slapped on the butt by an office mate.  The plaintiff made an internal complaint to HR about the mistreatment and the company fired him just two days after making that complaint.  His employer acknowledged that it terminated him as a result of his complaint, but clarified that he was terminated for (among other reasons): 1) failing to report the harassment “immediately,” as he had been instructed; and 2) failing to report the harassment to a specific supervisor, as he had been instructed.

The case was dismissed on a summary judgment motion by the lower court and the Seventh Circuit Court of Appeals reviewed that dismissal on appeal.  Unfortunately, the appellate court held that the kind of same-sex harassment which Lord had alleged did not amount to actionable sexual harassment under Title VII of the Civil Rights Act and, also, that the employer had had legitimate, non-retaliatory reasons to terminate him.

There are a whole lot of things about this opinion to take issue with (including the notion that an employee repeatedly having his butt slapped and poked does not qualify as sexual harassment).  But I want to focus here on the court’s ruling on the retaliation claim based on Lord’s internal complaint – both because it seems so obviously incorrect and also because it might have a serious impact on an employee’s ability to successfully pursue a retaliation claim in our jurisdiction going forward.

In a strong dissenting opinion, Judge Ilana Rovner explained that the fundamental question in any retaliation case is whether a reasonable jury could find that the plaintiff would have kept his job if he had not reported the unlawful conduct.  She went on to explain that, unlike most retaliation cases, in this matter the employer had conceded that it terminated Lord as a result of his internal complaint of harassment.  Specifically, the company acknowledged  that it terminated Lord because he failed to follow instructions to make his internal complaint of harassment “immediately” and to a specific supervisor.

Judge Rovner correctly asserts that the appellate court’s characterization of those reasons as legitimate business decisions and non-retaliatory justifications for termination represent “a profound and dangerous step that would severely undermine the protections of Title VII” where it provides employers a “free pass” to terminate an employee whose internal complaint of harassment or other unlawful conduct does not adhere strictly to employer’s policy on how to make those sorts of complaints.  In other words, an employer could terminate an employee because he or she made an internal complaint of discrimination or harassment without fear of liability for retaliation so long as the employer could claim that the complaint was not made to the right person, at the right time, or in the right format.

The reality is that making an internal complaint of unlawful conduct is often a scary step.  Employees who fear that they will not be taken seriously, will be retaliated against, or will be perceived as overly sensitive often take their time and think about whether to come forward before making an internal complaint.  Further, because an internal complaint often revolves around race, sex, religion and other particularly personal issues, many employees may want to make their complaint to a member of management or an HR person with whom they have a strong relationship – as opposed to some specified employee who they don’t know or may not trust.

Given these concerns, courts in the past (including the 7th circuit) have held that any internal complaint of unlawful conduct made to a member of management constituted protected activity under Title VII and other similar statutes as long as the complaint used language which clearly invoked a protected status (i.e., gender, race, ethnicity, disability, age, etc.).  This new decision in Lord flies in the face of that common sense precedent and represents a dangerous departure for retaliation jurisprudence.  But unless the appellate court decides to re-consider its own ruling or the plaintiff appeals further to the United States Supreme Court and gets this decision reversed, it is currently the law in our jurisdiction.

With that in mind, we have a little advice for current employees who, unfortunately, may have experienced discrimination or harassment in the workplace:  Read your employment handbook and workplace policies carefully.  Make sure that in making an internal complaint, you do so in accordance with the guidelines set forth by your employer.  If the policies dictate to whom complaints must be made, then make your complaint to that person.  If the policies dictate that your complaint must be in writing, then type up a summary of your concerns.  And, if the policy dictates that your complaint must be made immediately, then do not hesitate.  Make your complaint on the very day that the inappropriate conduct occurs.  This may be uncomfortable and may not give you the time you’d typically like to process your situation and weigh your options.  But it may be the only way to protect your job while also putting your employer on notice of the discriminatory work environment so that they can take some action to remedy it.

In the meantime, we will hope to see this case reversed and the strength of our important anti-retaliation protections restored.