Promoting Harasser to Management Leads to Retaliation Case 10-01-2004
- By Rita Risser

Employers who resolve internal harassment complaints by disciplining the harasser often are faced with a difficult decision in the future: should the discipline prevent the harasser from being promoted to management? On the one hand, if the harasser has learned from his mistake it should not be held against him forever. On the other hand, if he has not learned, and uses his new position of authority to retaliate, the company can be sued for retaliation.

But how can a company protect itself when it promotes someone they don't know is a harasser? That's what happened in a recent Court of Appeals case. A woman was harassed by a manager, and filed an internal complaint. While the complaint was being investigated, she was harassed by a co-worker. She mentioned the second harassment to the person investigating the first complaint, but did not file another complaint.

About a month later, the co-worker was promoted to a position in the Personnel Office where he had control over the woman's job assignments and vacation leaves. Over the next five years, he denied her many requests for assignments, transfers, and leave. In almost every situation, either a subordinate of the harasser, one of his peers, or his supervisor, was aware that he was taking an adverse action against the woman for no apparent reason. Finally, she filed a complaint against him, went to trial, and won on appeal for retaliation.

What this means to you: On the surface, this may seem an unfair result since she didn't file a complaint when the harassment first happened. However, there were many people who knew about the situation: the investigator of the first complaint knew about the harassment, and many people in the Personnel Office were aware of the adverse personnel actions. That's why ALL employees should be trained in harassment prevention, including retaliation. If just one of the employees had "blown the whistle," the employer could well have avoided suit.

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Porter v. California Dept of Corrections (9th Cir, No. 0216537p, 09/01/2004)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.