Employers are often warned about the dangers of taking adverse actions against employees who complain about harassment or discrimination. This is especially true since the Supreme Court's decision in Burlington Northern v. White, 548 U.S. 53 (2006), which liberalized the standard for what constitutes retaliation, is making it far easier for employees to pursue retaliation claims. Two recent Seventh Circuit cases, Tate v. Executive Management Services, Inc., 2008 U.S. App. LEXIS 21193 (7th Cir., Oct. 10, 2008) and Magyar v. Saint Joseph Regional Medical Center, 2008 U.S. App. LEXIS 19994 (7th Cir., Sept. 12, 2008), provide guidance on emerging issues employers should consider when employees complain. These issues include the types of complaints that may enable employees to allege retaliation and the types of complaint management procedures that employers should utilize to reduce the likelihood of a viable retaliation claim.

The Cases

Tate v. Executive Management Services, Inc.

Alshafi Tate worked as a maintenance employee for Executive Management Services ("EMS"). Shortly after starting at EMS, Tate began a consensual sexual relationship with his manager, Dawn Burban. A little over a year into the relationship (and his job at EMS), Mr. Tate tried ending things with Ms. Burban because he had recently married. Ms. Burban allegedly told him that he would lose his job if their sexual relationship ended. When Ms. Burban later asked Mr. Tate what his decision was, he told her that "he wasn't messing with her anymore." EMS terminated Mr. Tate shortly thereafter for alleged insubordination. Mr. Tate filed a sexual harassment and retaliation claim, and the jury returned a verdict in his favor on the retaliation claim. EMS moved to set aside this verdict arguing that Mr. Tate had not engaged in any protected activity. The trial court denied EMS's motion finding that "rebuffing sexual harassment can in some situations be considered opposition to an unlawful employment practice."

The Seventh Circuit reversed. The Court first acknowledged that some cases have held that a person who rejects a supervisor's sexual advances has engaged in a protected activity for purposes of a retaliation claim. The Court held that even if it were to agree with these cases, Mr. Tate did not engage in any protected activity because there was no evidence that he believed he was being sexually harassed. Rather, the evidence showed that Mr. Tate "rebuffed" Ms. Burban because he wanted to "be true" to his wife. His own statements, including that he "wasn't messing with her anymore," did not indicate that Mr. Tate thought he was protesting illegal harassment. Because he could not show that he reasonably believed that the practice that he opposed violated Title VII, he had not engaged in protected activity and therefore, his retaliation claim failed.

Magyar v. Saint Joseph Regional Medical Center

Jessica Magyar worked as a part-time assistant scheduler at Saint Joseph Regional Center (the "Hospital"). Ms. Magyar complained to her boss, Pam Goddard, after a male co-worker sat on her lap and whispered "you're pretty" into her ear on two occasions. Ms. Goddard told Ms. Magyar that she was reluctant to speak with the male co-worker about the incident unless Ms. Magyar was willing to file a formal complaint. Ms. Goddard changed her mind when Ms. Magyar revealed that she previously had been a victim of sexual assault and therefore was sensitive to such behavior. Ms. Goddard then spoke with the male co-worker that same day; the coworker was contrite and no further incidents took place.

Although the incidents were resolved, Ms. Goddard never told Ms. Magyar of this resolution. Not hearing anything from Ms. Goddard, Ms. Magyar complained to the Hospital's general counsel about Ms. Goddard's failure to respond to her complaint. Human Resources instructed Ms. Goddard to meet again with Ms. Magyar, which she did. During this meeting, the discussion focused less on the resolution of the lap incidents than why Ms. Magyar felt it necessary to complain to the general counsel. Nine days after this meeting, Ms. Magyar learned that her job had been posted due to a restructuring of her position (now requiring longer hours). Due to Ms. Magyar's college class schedule, she was unable to bid for the restructured position and was ultimately terminated. Ms. Magyar filed suit claiming that the Hospital retaliated against her for her complaints of sexual harassment. The trial court dismissed Ms. Magyar's suit upon granting the Hospital's motion for summary judgment.

The Seventh Circuit reversed, finding that Ms. Magyar had presented sufficient evidence of retaliation for her claims to be decided by a jury. In doing so, the Court rejected the Hospital's argument that no retaliation occurred because Ms. Magyar's own allegations showed that her termination was merely a response to her complaint about Ms. Goddard's management skills (not the lap incidents). The Court concluded that by complaining about Ms. Goddard's handling of her initial complaint, Ms. Magyar was essentially asking the general counsel "to ensure that the institution do something about sexual harassment"--which constitutes protected activity. Accordingly, the complaint about the lap incidents, with the follow-up complaint about Goddard's handling, "made up one continuous complaint process." Moreover, even though the lap incidents and her initial complaint occurred almost two months before any sign that Ms. Magyar's position was being posted or restructured, the Court assumed (for purposes of summary judgment) "that the suspicious-timing clock was restarted" with the follow-up complaint. Thus, because Ms. Magyar learned that her job had been posted a mere nine days after her follow-up complaint, she easily established the "suspicious timing" indicating that the complaint may have caused the adverse action.

The Take-Away

While the Seventh Circuit has not yet decided this issue definitively, there are cases holding that employees may be protected from retaliation by simply rebuffing a supervisor's sexual advances, without providing any further complaint or notice to the company (e.g., to human resources or a manager). The Tate decision instructs that even in such cases, employees are protected only if they reasonably believe that they are rebuffing harassment and not, for instance, a jilted lover. Nonetheless, in such cases, the employer is afforded virtually no opportunity to manage the situation to avoid later claims of retaliation. The employer's only recourse is to properly train their managers and supervisors, and investigate any reports from others with knowledge of the situation.

Where employers do have the opportunity to manage the harassment complaint, the Magyar decision instructs that employers risk liability not only for the harassment but also for retaliation if they do not effectively handle the resolution process. As an initial matter, employers should not refuse to take action simply because the employee may not follow formal complaint procedures. The employer is still on notice that there may be harassment and therefore, an investigation is needed. The Court in Magyar noted that Ms. Magyar having had to "prod [her supervisor] into action" was inappropriate. Additionally, such reluctance risks increased liability if another incident occurs between the time the employee made his/her "informal" complaint and the time that he/she takes the required formal steps.

Employers also should be sure that when they take action to resolve a harassment complaint, they follow up with the complaining employee so he/she knows it has been resolved. In Magyar, the supervisor took prompt remedial action (indeed on the same day Ms. Magyar had complained) which successfully resolved the situation. But because Ms. Magyar was not informed of this resolution, she was arguably "left in fear that at any moment there might be a third incident." Thus, when she complained again, Ms. Magyar had renewed retaliation protection such that any adverse action taken soon thereafter was suspect. Employers can avoid such unnecessary liability risk by implementing a structured resolution process that entails effective communication to the complaining employee, both before and after a resolution is achieved. This process should be handled by designated individual(s) to ensure consistency and the individual should not be the employee's supervisor. Supervisors are often the ones making decisions that may ultimately have an adverse effect on the employee and separating them (to the extent feasible) from the complaint-handling process may make those decisions less suspect.

Employers also should adopt a process for when employees complain about how their harassment complaint is being handled. This process should entail having a different manager review the steps taken and communicate with the employee. In Magyar, the Hospital allowed the same supervisor who was complained about to follow-up with the employee. This was counterproductive. The supervisor was (unsurprisingly) "defensive and irritated," which only provided further evidence that her later decision to restructure Ms. Magyar's position was retaliatory. Having a neutral party step in and communicate with the employee avoids this scenario. Nonetheless, such follow-up complaints about the handling of an investigation or a prior report of harassment can be protected activity. Moreover, courts will look to that later complaint, rather than the older one, to determine whether the timing of any subsequent adverse action is suspicious. Thus, employers should take appropriate steps before implementing any such action (e.g., ensuring they have clear and documented non-retaliatory reasons for acting and can identify non-complaining comparable employees who were treated similarly).