Wednesday, February 12, 2020

Even though this employer won its ex-employee’s retaliation lawsuit, PLEASE don’t do what it did

Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.

For example, consider Allen v. Ambu-Stat.

D’Marius Allen worked as an EMT for Ambu-Stat, owned by husband and wife Santos and Rita Ortiz. During the four months Allen worked for Ambu-Stat, she claimed that Santos subjected her to sporadic instances of verbal sexual harassment. For example, he told her she was “pretty” and “fine as hell.” She also alleged he made three sexually suggestive comments to her.

Three months into Allen’s employment, Rita called her into her office and accused her of discussing her sex life with Santos. Allen demurred that Santos started any sexual conversations between them. Rita ended that meeting by warning Allen that it was inappropriate to discuss her personal life with Santos, as he was her employer. One week later, Rita delivered a disciplinary Employee Correction Form to Allen for having had an “inappropriate conversation” with Santos while on duty. The form stated that “having such conversations while on duty with co-workers (or especially with my husband) is extremely inappropriate and unacceptable.”

Allen responded by explaining to Rita, in writing, that Santos had asked her if her boyfriend was good at oral sex, in response to a lyric in a song on the radio. Allen also wrote that she did want to be “involved in any sexual harassment.” Finding Allen’s explanation to be “outlandish,” “disturbing,” and “full of lies,” Rita terminated her.

The 11th Circuit Court of Appeals affirmed the district court’s dismissal of Allen’s retaliation claim. The court differentiated between bona fide opposition to unlawful discrimination or harassment (protected), as compared to an attempt to apologize and mend fences (not protected). The court concluded that Allen had engaged in the latter. Case dismissed. Employer wins.

This decision is baffling. Allen was in an extraordinarily difficult situation, harassed by one owner-spouse and having to justify her action to the other owner-spouse. She should not have to use “magic words” to express her discomfort in the situation. (Never mind that she actually did use the magic word “harassment”.)

An employer has the same anti-harassment and anti-retaliation obligations to an employee whether the accused harasser is a line worker or an owner. Take the allegations seriously, investigate, correct, and do not retaliate. Ambu-Stat failed on each of these steps and is very lucky to have walked out of this case free and clear.

* Image by Виктория Бородинова from Pixabay