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Hiring new employees just became even harder…if that’s possible. A federal judge ruled that if an applicant is not hired because she complained about discrimination or harassment to a former employer, the company that refused employment could actually be liable for retaliation.
A female clerk at a Kauai athletic club accused a male coworker of sexually assaulting her. The lawsuit claims that she reported the incident to her immediate supervisor two days after it occurred but the employer failed to investigate the complaint. She is alleging that she, instead, was actually discouraged from continuing her employment with the company.
After the alleged assault, the athletic club was sold and employees were released from their jobs but were told that they could reapply to work for the new owners.
It was at this point that the clerk claimed she was discouraged from applying at all. She claims that she did submit an application anyway but was actually denied an interview altogether with the new owner.
The clerk sued both the company that previously owned the athletic club and the new owners who refused to hire her asserting sexual harassment, retaliation and wrongful discharge (amongst other things).
The former club owner asked a federal judge to dismiss the sexual harassment claim saying that he could not be held liable for another person’s actions. The judge responded that since the alleged perpetrator wasn’t a supervisor the employer could actually be held liable only if the clerk could prove that the club knew about the harassment and failed to take any action. The judge concluded that the clerk was allowed to proceed with the harassment claim.
The new owner claimed that it couldn’t be held liable, simply because it never employed the clerk. The judge, again, rejected the new owner’s argument with respect to the retaliation claim. The judge explained that the new owner could be held liable if the clerk was able to prove that the company refused to hire her because she “engaged in protected activity”.
The judge’s ruling focused on whether the allegations were sufficient enough to allow the clerk’s case to actually proceed to the next stage of litigation. “The judge did not conclude that either the clerk’s former employer or the new owner of the club had violated the law.” This case is still currently pending in federal court in Hawaii.
HR experts are looking at this case as a learning experience. One expert states that the lesson that can be learned from this is that each sexual harassment claim needs to be taken seriously. Another expert explains that refusing to hire someone because they complained about something occurring in the workplace is completely unlawful.
Management should be trained on the criteria they may have to consider when making employment decisions, to prevent any further legal issues from happening.