Here’s the thing about retaliation claims: they are relatively easy to get to a jury. And once that happens, well, examples abound of juries sending punitive messages to employers about how they feel about retaliation (recall the $44 million verdict for a single plaintiff levied by a Cuyahoga county jury a few years back). It is right around when an employee complains about harassment or discrimination that retaliation claims are ripest. And it does not matter whether the underlying claim – the one that triggered the retaliation – has merit or not.
Westendorf v. West Coast Contractors was decided earlier this month. Ms. Westendorf made an internal complaint of harassment (in essence, male employees made sexually demeaning comments to her over a three month period). Shortly thereafter, the company president (who she had complained to) confronted her with an alleged performance issue, told her she obviously could not get along with her supervisor (one of the alleged harassers), and suggested it would be best if she left the company.
One lawsuit and a lot of money later, the appellate court upheld the dismissal of the harassment claim, finding the evidence was insufficient to show a hostile work environment. The retaliation claim, now that’s another story. The evidence was sufficient to let a jury decide if Ms. Westendorf was fired for complaining about retaliation. And we all know how risky letting a jury decide can be.