Can a worker claim retaliation after she slapped her harasser?
If an employee smacks a manager she claims is sexually harassing her, a company is justified in firing her, right?
Maybe not.
That’s the question being asked in a retaliation lawsuit involving WES Health System and a former employee.
‘I want some of that …’
Sameka Speed, an employee at WES, complained several times about her supervisor, Macon Garway, making sexual comments and gestures toward her.
According to her complaint, Garway would often do things like ask her for sex, point to Speed’s crotch and say he wanted “some of that,” or point to his own crotch and say he wanted to give her “some of this.”
Speed made several oral and written complaints to Garway’s supervisor about the inappropriate conduct. But even though Speed wasn’t the first woman in the office to protest his behavior, WES never investigated her claims or punished Garway.
Over time, Garway’s harassment became more physical. One day, he began to rub Speed’s leg. She asked him to stop, and warned if he ever tried to touch her again, she would defend herself.
But Speed’s warning fell on deaf ears, and Garway reached out to touch her again.
That’s when Speed clocked him.
That finally got the C-suite’s attention. WES investigated, and soon after, fired Garway for his actions. But it also fired Speed for slapping her manager.
Lost protections? Not quite
Speed sued for retaliation.
The company tried to get the suit tossed, saying slapping Garway during an isolated harassment incident negated any protection normally given to victims.
But the judge is sending the case to jury, saying:
Speed does not contend that she struck Garway to protest his conduct, but rather that she struck him to defend against his conduct. She does not contend that he deserved to be struck, but rather that she deserved to be protected against his unwanted physical advances
In other words, evidence could lead a jury to reasonably conclude Speed was fired as retaliation for defending herself from the harassment her employer chose to ignore.
Now, WES is facing a costly lawsuit — win or lose — or an expensive settlement.
The case is a good reminder to other employers and managers that they can’t brush off complaints of harassment. Be sure your company has a thorough investigation process in place to objectively review complaints and follow up with victims in a timely manner.
You also want to reach out to your workers and make sure they understand they won’t be punished for coming forward with complaints.
Cite: Speed v. WES Health System.
