In Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. Oct. 5, 2016), the Seventh Circuit held in a 2-1 decision by Judge Diane Sykes that Ryan Lord failed to show that he was fired in retaliation for complaining about sexual harassment by male coworkers. Notably, the majority credited the employer's assertion that it fired Lord in part because he failed to report new incidents of harassment immediately, contrary to what he had been instructed to do after previously complaining about harassment. In dissent, Judge Ilana Rovner criticized the majority for upholding a practice that would have a "chilling effect" on the reporting of harassment and that "provides the employer with an end-run around the Title VII retaliation provision."
This strikes me as a close case, but I think the majority got it right. While it is true that the reporting of harassment constitutes protected activity, Title VII does not entitle employees to better treatment for engaging in protected activity. Thus, as long as the employer would fire an employee for failing to immediately report coworker misconduct, regardless of whether the report involves protected activity, the employer has not discriminated against the employee, i.e., treated him worse, because he engaged in protected activity.
I do, nonetheless, share the dissent's concern that employees must not be placed in a catch-22 in which they can be fired if they complain too soon about harassment because it has yet to reach the point of violating federal law and can also be fired if they wait too long because they were required to report harassment immediately. As a result, I think that if an employer requires an employee to report harassment immediately, then an employee who complains about harassment at an early stage has a reasonable belief that his complaint is protected and will not subject him to discipline. So while an employer may be permitted to require employees to report harassment at an early stage, it cannot then turn around and fire them for doing what it told them they had to do.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
