The following example is based on a real scenario that represents the types of retaliation claims that are reported.
Tina was hired as a sales associate. Within a few years, she was promoted to a territory manager. Her performance reviews were consistently very positive. Due to a reorganization, she began reporting to a different manager. Almost immediately, she had problems interacting with her new manager, Mark.
Tina alleges that as soon as she started reporting to Mark, he began asking her out on dates. She alleges that after she refused, Mark began treating her unfairly by denying her the better leads and excluding her from sales meetings. Tina claims that she went to HR and complained about the situation, explaining that she felt she was being sexually harassed and retaliated against by Mark. Six months later she was terminated. She claims that her termination was in retaliation for her complaints of sexual harassment.
Mark admits to asking Tina out on a date twice, but when she clearly was not interested, he never asked again. He denies treating her any differently as a result. He claims that after her mother was diagnosed with a serious illness, Tina’s job performance began to suffer. He alleges that although the bank tried to make allowances knowing that she was going through a difficult time, Tina’s performance eventually deteriorated to the point where he had no choice but to terminate her. Mark had no idea that Tina had complained to HR regarding his behavior.
The bank’s story
The bank’s HR manager, Hannah, stated that Tina had a discussion with her about her job situation. Hannah claims that Tina was aware that her performance was slipping due to her mother’s illness and wanted her managers to know she was working on it. Hannah also claims that Tina was upset that Mark was not more understanding about her situation and was not allowing her more leeway to deal with her situation. Hannah alleges that she counseled Tina to find a way to get her job done. While Hannah denies that Tina ever claimed that she was being sexually harassed or retaliated against, Hannah did not have any notes from their meeting and was somewhat vague on the details of this interaction.
After Tina was terminated, she filed a lawsuit against the bank, alleging sexual harassment and retaliation. The problematic allegation here is not the claim of sexual harassment since Mark’s behavior is unlikely to rise to the level of sexual harassment. The potential exposure here arises from the retaliation claim. Even if there were no sexual harassment, if Tina was retaliated against for making a complaint of behavior that she perceived as sexual harassment, she has a viable retaliation claim.
The bank settled this case at mediation for $50,000.
Best Practices Tips: What could the bank have done differently?
- Communication. Improve communication between HR and managers. Here, Mark and Hannah each had parts of the story, but did not share information. They should have discussed the matter fully before any decision to terminate Tina was made.
- Accommodation. Always explore what options may be available to deal with an employee situation. Could the bank have offered Tina part-time hours, flex time or a different position to help her through a difficult time? Some accommodation may have been enough to get Tina through a difficult time and back on track with her performance.
- Documentation. Hannah should have documented her meeting with Tina and specifically made note of the issues discussed. This would have been strong evidence against Tina’s claims that she reported sexual harassment and retaliation.
- Performance Management. Mark should have done a better job of managing Tina’s performance. There should have been a written record of the shortcomings in her performance. This would have made in clear that Tina’s termination was the result of performance issues.