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No Sex Harassment, But Possible Retaliation

This court case throws out a claim of sexual harassment, but allows a claim for retaliation to proceed. Employers should be aware that retaliation claims can be more difficult to resolve than the initial claim.

March 3, 2006
Related Topics: Harassment, Discrimination and EEOC Compliance
Debbie Barlow, a woman working in the scanning department of Conagra, complained to the human resources department that a female co-worker was touching her and making sexually inappropriate comments. When the co-worker’s touching and comments did not stop, within two days of her initial complaint to her employer Barlow filed an EEOC charge of discrimination.

    Conagra tried to resolve the charge at the EEOC stage through mediation. Mediation was unsuccessful. Within a week of that failed EEOC mediation, Barlow was fired for allegedly using language that threatened violence against the company.

    Barlow sued for sex harassment and retaliation. She complained that a female subordinate in her department had been subjecting her to unwelcome conduct of a sexual nature. That conduct included hugging her, rubbing her shoulders, brushing her breast with her hand, getting close to her when she spoke to her and whispering in her ear.

    The court threw out Barlow’s sex harassment lawsuit because the alleged harassment was neither severe nor pervasive. However, the court let the retaliation claim proceed to a jury trial because there was a close causal connection between her EEOC charge filing and her termination less than two months later. Barlow v. Conagra Foods Inc., 2005 U.S. Dist. LEXIS 31398 (N.D. Fla. Nov. 23, 2005).

    Impact: Employers are advised that retaliation claims can be more difficult to knock out than the substantive underlying claim.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Recent Articles by James E. Hall, Mark T. Kobata, Marty Denis and D. Diane Hatch

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