Can an Employee Get Fired For Punching a Sexual Harasser?

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By Eric B. Meyer

Can you smack your sexual harasser, complain, and still claim retaliation?

The plaintiff in this case (Speed v. Wes Health System) claimed that she was sexually harassed by her male supervisor for over a year. The court’s opinion details alleged comments and groping in vivid detail. (No recap here. I plan to keep my post PG, damn it! OK, PG-13. You happy, now?).

Whenever the plaintiff supposedly complained, her employer did nothing about the harassment.

Can a plaintiff hit her harasser and win a retaliation claim?

So, finally, she decked him one.

That got the employer to take notice. Indeed, it determined that the plaintiff had been sexually harassed and it fired her harasser. Then, the company also fired the plaintiff.

So, the plaintiff sued for retaliation.

Her former employer responded by arguing that her claims should be dismissed because she admitted that she was terminated for “the efforts she made to defend herself”). Effectively, the company wanted the court to rule that, whenever an employee strikes a co-worker, the employee absolutely cannot prevail on a retaliation claim.

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But, not so fast, said a Pennsylvania federal court:

In effect, Defendant seeks a ruling that if an employee strikes a co-worker, regardless of the circumstances, an employer’s decision to terminate must necessarily be upheld in every case, even where retaliation is a plausible alternative explanation. I am not persuaded that the law requires such a result….Here, Speed does not contend that she struck Garway to protest his conduct, but rather that she struck him to defend against his conduct. She does not contend that he deserved to be struck, but rather that she deserved to be protected against his unwanted physical advances….At a minimum, under the totality of the circumstances discussed above, Plaintiff has alleged enough to move forward with discovery and attempt to prove pretext.”

Supervisors need to know their role in harassment complaints

Folks, please train your front line managers and supervisors not to trivialize or ignore complaints of harassment, no matter how minor (or major).

Indeed, their role is not to cast judgment in any way.

Rather, make sure that your managers and supervisors pass along all complaints of harassment to whomever is responsible for investigating and addressing them.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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3 Comments on “Can an Employee Get Fired For Punching a Sexual Harasser?

  1. Who knows what will happen to the supposedly worst, unprofessional unhuman trashy restauranteur and owner James Boyce of Pane Vino in Huntsville, AL as he is known for cursing and yelling at his employees causing humiliation as totally unprofessional and unacceptable. Karma must play out.

    Also, the worst of worst unhuman, female bully named Susan Jones from Northport, Alabama/graduate from University of Alabama who was sadly a volunteer coordinator at Alabama Hospice Care in Trussville, AL in 2007 which used to be Kindred Care Hospice is always known for worst, abnormal nasty temper tantrums, talking nastily with discrimination, acting out unacceptably towards senior citizens and volunteers with total abnormal micromanagement over nit-picky things malicious gossip and acting very condescending and purest hypocrisy with breaking promises, trying to cover things up and project lots of insecurities with always pointing faults and blame to others and very stupidly how she was a raging alcoholic. How unfortunate it felt as if she to be hit and what a shame some people didn’t interfere and speak up like Farah or anybody else when she acted out. Thank God she got fired and she never should have been hired as she will always be remembered as the worst of worst person with no soul and a female bully and sociopath of humanity. Let us pray she doesn’t rape or molest anybody as sadly she is a nurse somewhere in Auburn, AL. Karma shall play out against her.

  2. Also, it is a shame and utmost abnormal and unacceptable how the receptionist of the hospice named Linda Chavies would speak negative and act cold for no reason. This must never be tolerated ever.

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