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Court Rules No Retaliation for Not Reporting Harassment

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Kristie Alley began working for Penguin Random House as a full-time order processor in 2014. Within two years, Penguin promoted Alley to the management position of Group Leader.

Sexual Harassment Complaint Form
Sexual Harassment Complaint Form

Part of Alley's duties as a Group Leader was reporting sexual harassment allegations when she learned of them. Penguin provided clear instructions on how to do so.

In 2019, Marlene Guzman informed Alley that a male co-worker was sexually harassing her. Despite her duty to follow Penguin's reporting procedure, Alley did not. Instead, she conducted her own independent investigation into the allegations. Alley asked the female employee to provide a written statement detailing her allegations, which the female employee gave her a few days later. Another employee submitted a corroborating statement. Alley also messaged a former employee via Facebook to discuss her experience with the accused.

But, Alley never shared any of this with management or human resources.

When all of this came to light later, Penguin fired Alley. So, she sued for retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) and for breach of contract under Indiana law. (Alley v. Penguin Random House).

To prevail on a retaliation claim, a plaintiff must produce evidence from which a reasonable juror could find that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between the two.

Now focus on that protected activity piece. An employee engages in a protected activity by either: (1) filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Title VII or other employment statutes; or (2) opposing an unlawful employment practice.

So, what about not complaining? According to the Seventh Circuit Court of Appeals:

Sexual harassment is indisputably an unlawful employment practice and thus, reporting allegations is a recognized protected activity under Title VII. But Alley did not actually report harassment; she failed to report harassment. Failing to report is not a protected activity under Title VII.

But, does she get credit for conducting her own investigation? Nope.

Whatever her motivation in undertaking her own investigation instead of taking the report to HR, her conduct simply is not statutorily protected activity. Thus, Alley cannot satisfy the first requirement of a retaliation claim.

What if she called to complain, but no one answered the phone? Still no protected activity.

It is undisputed that Alley never reported Guzman's sexual harassment allegations. Alley argues that she attempted to report when she called the ombudsperson, but her call went unanswered, and she never actually spoke with anyone. She admits that she never made another attempt to call the ombudsperson or to communicate the complaint to an HR representative as required by the reporting policy. Penguin management independently learned of the allegations and asked Alley if she knew anything.

To help protect themselves, companies should ensure that there is a policy and practice of requiring managers to: (1) report complaints of discrimination and sexual harassment; (2) take prophylactic steps to separate the victim from the alleged harasser; and (3) refrain from conducting unauthorized independent investigations into the underlying complaint.

Posted In: Sexual Harassment; Title VII of the Civil Rights Act of 1964 (Title VII); Workplace Policies/Rules

Want to know more? Read the full article by at The Employer Handbook

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