Court Expands Employer Liability For Sexual Harassment

In Velazquez-Perez v. Developers Diversified Realty Corp., the Eleventh Circuit held for the first time that employers can be liable for a co-worker’s actions where: (1) the co-worker acted, for discriminatory reasons, with the intent to cause the plaintiff’s firing; (2) the co-worker’s actions were in fact the proximate cause of the termination; and (3) the employer allowed the co-worker’s acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

The plaintiff in Velazquez was an operations manager for the defendant company. His work required him to frequently interact with a co-worker named Martinez. Approximately six months into his employment, the plaintiff and Martinez stayed at the same hotel for a company meeting. One evening, Martinez followed the plaintiff to his room, tried to force her way into his room, and then stood outside of his room. Martinez did not leave until the plaintiff threatened to call security. Martinez also sent plaintiff multiple emails and called his room several times that evening. In the days following the incident, plaintiff emailed Martinez to say he was not interested in a romantic relationship. In response, Martinez made statements the plaintiff interpreted as threatening to have him terminated for rejecting her advances. The plaintiff complained to his supervisors and his supervisors responded that he should apologize because otherwise Martinez would have him fired.

Martinez began to discuss the plaintiff’s job performance with his supervisors, including copying his supervisors on emails that could be perceived as negative, discussing other accusations against plaintiff, and suggesting the allegations against plaintiff were grounds for termination. When a top company official responded that he did not think termination was warranted, Martinez responded that she was “obligated to refer this” to top company officials. Later that day, Martinez again propositioned the plaintiff to engage in a romantic relationship. The plaintiff declined, and Martinez emailed senior officials at the company headquarters to recommend the plaintiff’s termination. The plaintiff was terminated four days later.

The plaintiff brought suit, alleging, among other claims, that the defendant discriminated against him on the basis of sex in violation of Title VII because Martinez caused his termination after he refused her sexual advances. Recognizing the Supreme Court has not ruled on the question of whether a plaintiff, whose termination was caused by a co-worker, can prevail under the “quid pro quo” theory of sexual harassment, the court noted that there is no justification for allowing a negligent employer to escape liability under that theory. Ultimately, the court found, “[t]he employer should be liable if it fires the victim based on complaints that it knew (or reasonably should have known) were the product of discriminatory animus.”

The Velazquez decision may expand protection for Ohio and Cincinnati area employees by requiring employers to insure complaints about an employee’s performance are not the result of discriminatory ill-will. The decision also encourages employees to complain about discriminatory actions, because an employer cannot be held liable under this theory unless it knew, or had reason to know, of the discriminatory motive. Persons who are experiencing sexual harassment by a supervisor or a co-worker should contact a sexual harassment attorney in Cincinnati to learn how to protect their rights. A Cincinnati sexual harassment attorney at Robert A. Klingler Co., L.P.A. may be able to help resolve the issue before litigation becomes necessary. Anyone who has been terminated as a result of sexual harassment, or making a complaint of sexual harassment, should contact an attorney experienced in sexual harassment cases immediately.