The Court of Appeals just decided a case involving a claim of harassment and retaliation. The plaintiff worked for a hotel, and reported to a man named Ahmed who had been rehired after having been terminated several years before. According to the complaint, many people had complained about the supervisor’s sexual harassment, assault, battery and discrimination during his first stint with the hotel. Upon his return, he asked the plaintiff to help him identify those who had complained about him, so he could fire them in retaliation. Mr. Ahmed also rehired a manager who sexually harassed the plaintiff. He discouraged her from continuing to complain about the harassing behavior. When she continued, and accused him of retaliating, he fired her.
The case will go back to trial because the jury was given the wrong instruction on retaliation.
The Court also resurrected the plaintiff’s claim that rehiring Ahmed was negligent. The Court of Appeals decided that if retaliation is a motivating factor in the decision to fire someone, it is illegal. The jury had been told that only if retaliation is the determining factor could they decide for the plaintiff.
This may seem like splitting hairs, but the opposite is the case. Most employers come up with some reasonable sounding explanation for a firing. Sometimes they do so right away, and sometimes after suit is filed, but most employees can be accused of something that violates a policy. (In this case it was “insubordination” and a bad attitude among other things – both are consistent with someone frustrated over having her complaints of sexual harassment ignored.) The adoption of the “motivating factor” standard is a big step forward.