Firms may be liable for retaliation against harassment charges
Published 03/25/05

 An employer may be liable if the worker who complained about sexual harassment is subjected to retaliation by co-workers. Federal law protecting employees from sexual harassment, likewise, prohibits retaliation against the worker for making a complaint as to the sexual harassment.

On February 16, the Federal First Circuit of Appeals, which hears appeals from New Hampshire employment claims in federal cases decided in the case of Christi Noviello v. City of Boston , that Noviello could pursue her claim for retaliation against the City of Boston because of the retaliation of co-workers after she made a complaint.

In that case, on September 11, 1999 while on the job, Noviello, a parking enforcement officer for the City of Boston, was riding in a city-owned van with her immediate supervisor, José Ortiz. After first announcing his intentions, Ortiz forcibly unhooked the plaintiff's brassière, ripped it from her body, hung it on the van's outside mirror, and bellowed a crude sexual remark to a fellow employee on the street. Not surprisingly, Noviello complained to management with the result being that after suspension and an investigation, Ortiz was fired.

While Ortiz was considered Noviello's supervisor, he did not have any control over the employment decisions of Noviello, such as hiring, firing, or demotion. Therefore, the Court did not find the City of Boston directly liable for his actions because there have been no previous indications of such misconduct by Ortiz and once the City was informed, it took immediate, prompt corrective action in firing him. Therefore, while the City of Boston was not faced with a sexual harassment case that could go to trial, ultimately it was found by the Court that Noviello could move forward to a jury trial on a retaliation claim against the City of Boston.

Noviello's claimed numerous incidents of retaliation by co-workers including the fact that one co-worker accused Noviello of throwing a tampon at the co-worker which was shown to be false, she was referred to by a co-worker as "scum of the earth", and another proclaimed "I smell a rat, do you smell a rat", was told that all park enforcement officers had to take their lunch separately when, in fact, that was not the case, was left literally out in the cold while her co-worker drove off, and there were numerous other instances where derogatory comments were made to her and she was otherwise ostracized.

The Court found she would have to prove at trial to a jury that the retaliation created a hostile work environment wherein she was subjected to severe or pervasive harassment that materially altered the conditions of her employment which would be dependent upon the frequency of the discriminatory conduct, its severity, whether it physically or humiliated Noviello, and whether it unreasonably interfered with her work performance.

In other words, rudeness and ostracism standing alone usually is not enough to support a hostile work environment retaliation claim. The Court noted that co-workers taking sides in such a dispute is not enough to prove a retaliatory hostile work environment with the Court noting that after all there is nothing inherently wrong with either supporting a friend or with striving to avoid a controversy. Those actions are hurtful to the complainant because co-workers did not take her side in the work-related dispute.

In contrast, actions directed towards Noviello that stem from retaliatory animus may be factored into a hostile work environment analysis. As such, the employer would have an obligation to prevent co-workers from taking such actions against the complainant.

Simply put, the Court recognized you need not require a co-worker to like the worker who complains of sexual harassment but the employer should require the co-workers to treat her with respect and dignity.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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