A big part of my job as a labor and employment attorney is providing anti-harassment training to employees and supervisors. First, I help them identify what constitutes unlawful harassment in the workplace. Then I walk them through how to report and address it. Here, I emphasize that retaliation against a victim or a witness is never acceptable and is grounds for immediate termination. But, I also remind everyone that an employee who complains about unlawful harassment doesn't receive a get-out-of-jail-free card. That is, if the "victim" violates company policy -- e.g., by participating in behavior that also violates the anti-harassment policy -- then discipline will follow. That's not "retaliation." Call it a rude awakening.
Just ask the Eighth Circuit. I'll explain after the jump.
The Eighth Circuit in Alvarez v. Des Moines Bolt Supply, Inc. upheld the dismissal of a lawsuit that a female employee asserted against her employer. Ms. Alvarez alleged that she had complained to several supervisors about sexually harassing conduct directed at her by one of her co-workers. One alleged slur involved her co-worker expressing his displeasure that Ms. Alvarez had a five-pound lifting restriction because he needed help in the bathroom with his twelve-pound penis. *smh*
The employer investigated the claim. During the course of the investigation, the employer learned that both employees had participated in conduct which violated the company's harassment policy. Accordingly, both were suspended. Later, the "victim" sued for harassment and retaliation. The district court dismissed her case, and the appeals court affirmed.
On appeal, Alvarez failed to show that a genuine issue of material fact existed as to whether her employer suspended her because of her complaint about sexual harassment, rather than its belief that she violated company policy. According to the court, "[i]f the employer takes an adverse action based on a good faith belief that an employee engaged in misconduct, then the employer has acted because of perceived misconduct, not because of protected status or activity." Accordingly, the Eighth Circuit affirmed.
Two takeaways from this case. As noted above, victims who violate the company's anti-harassment policy should be disciplined. And although many employers are gun-shy about doing it, victims who complain and then don't perform their jobs because they think that complaining about unlawful harassment immunizes them from discipline are, indeed, subject to discipline.