How many news stories have you seen or read lately that blare dark and stormy stories of our slowing economy, banks going bankrupt, and workers facing wave after wave of mass layoffs?
Have you noticed, too, how people act out during stressful times? Sometimes they act out in stupid ways.
A male co-worker acted stupidly toward Jessica Houston, when she was sharing a half-time scheduler position at an Indianapolis hospital. But the male co-worker wasn’t the only bad actor in this case; Jessica’s manager got involved too. There was plenty of stupid to go around.
Real Life Case:
The male co-worker was 52, and Jessica was 22. Two times he found her in a break room or lunch room, sat down in her lap, and whispered in her ear “You’re beautiful.”
Houston felt ashamed and confused. It was her first real job, and she wasn’t sure what the standard for behavior was in the working world. After the first instance Houston just hoped it wouldn’t happen again. But after the second time she knew she had to speak up to somebody in management.
Unfortunately, that “somebody in management” seemed annoyed at Jessica when she complained. Jessica felt like the Hospital’s response was basically “this isn’t a big deal.” In fact, the manager did not want to do anything because Jessica did not want to file a “formal” complaint.
That was management’s first dumb error — blowing off Jessica’s complaint and acting like it didn’t really amount to anything. Jessica felt that she had to justify why this was a big deal, even if she did not want to make her complaint “formal.” So Jessica revealed that she had been sexually abused as a child. She could not tolerate this similar behavior at work.
Then came management’s second dumb error — never getting back to Jessica about what was done to the perpetrator. Management didn’t even tell Jessica if anything had been done.
Jessica felt panicked and stressed when she came to work each day. First, her manager told her nothing could be done unless Jessica made the complaint “formal” (whatever that means). Then she had been forced to , Jessica tried to take her complaint up one level. She complained to the Hospital’s General Counsel about the lack of action on her harassment complaint.
Within two days Jessica saw that the Hospital was seeking applicant for her own position, but at 1/2 time instead of 1/4 time.
The same manager who didn’t take Jessica’s harassment complaint seriously explained that the two 1/4 time scheduler positions were being combined into one 1/2 position with benefits. Jessica was not invited to apply because she was also a student and had said she could not work 1/2 time hours.
Obviously, Jessica was not hired for the new 1/2 position, and her position was eliminated as part of this “reorganization.” The hospital said she could still do “on call” work, but after six months she had not been called in even one time. At that point a termination letter arrived in mail. The same manager who eliminated Jessica’s job and laid her off had also checked “No Re-Hire” on the termination form.
Houston sued the hospital, arguing that her termination was in retaliation for her sexual harassment complaint, and for her complaint about how her sexual harassment complaint was (not) handled.
The Hospital claimed that the “restructuring” was simply because it’s easier to have one person working 1/2 time instead of two people working 1/4 time. It supposedly had nothing to do with Jessica’s complaints.
She Loses, Then She Wins
At the trial court Jessica lost. The court agreed with the Hospital, and tossed out Jessica’s case before it got to a jury. On appeal, however, 2 of the 3 appeals judges voted to reinstate Jessica’s case and let her present her story to a jury.
The appeals judges ruled that Jessica should be allowed to take her case to a jury, because a jury could decide that she had been retaliated against for her complaints. The court specifically said that Jessica did NOT have to prove that sexual harassment took place. She merely needed to show that her manager eliminated her position, terminated her, and gave her “no re-hire” status because she complained.
1. Don’t Be Afraid To Complain. If you complain about mistreatment occurring to you or anyone else because of a protected class, then anything bad that happens to you or your job soon after will appear to be retaliation. Espeically if you anticipate layoffs or impending discipline, take a deep breath and speak up about those things you have been letting slide.
2. Retaliation is a Separate Legal Claim.Jessica did not litigate the merits of her harassment claim. Her court case focused on the separate legal claim of retaliation. If she had pusued both in court, she could conceivably lose the harassment claim, but win the retaliation claim (I’ve seen this happen).
3. Timing Matters. If you speak up about some legally protected issue (treatment of pregnant women, older workers, OSHA standards) and management does something bad to your career soon after — timing will be on your side. Courts will assume that these are a connected chain of events. Your employer will have to find evidence that is strong enough to break that chain. Also, inaction by management can be “a bad thing” that harms your career, just like in this case.
Have You Started Your Fight Back File?
Here’s a link to the case, so you can print it out and have it ready to hand to your boss or to H.R. if they ever: 1) refuse to act unless you make your complaint “formal”; 2) if they don’t take your complaint seriously and get back to you about it; 3) if the threaten to reduce the pay, yours, or benefits of your job after you’ve complained.