Sexual Harassment: How to Show the Employer’s Retaliatory Motives

NH Sexual Harassment — Employers rarely admit that they have retaliated against an employee for reporting sexual harassment.  The employer usually will try to rebut the employee’s claim of retaliation by alleging that the challenged employment action was not retaliatory but was actually motivated by some legitimate reason and had nothing to do with the employee complaining of sexual harassment.  How can the employee prove that the employer’s true motive was retaliation and that the employer is lying about the so-called legitimate reason for the action? 

One way the employee can make this showing is through “shifting justifications,” as the First Circuit Court of Appeals in Boston explained in the recent case of Carlson v. University of New England.  In Carlson, a university professor complained to the University that her department chair sexually harassed her, touching her on her knees and thighs, and making sexually charged comments towards her.  The University ultimately responded to the professor’s complaints by transferring her out of her department.  According to the professor, the University induced her to consent to the transfer by promising her that she could continue to teach her signature course, but that once the transfer happened, the University removed that course from her responsibilities and reassigned her to teach remedial-level courses. 

The University argued that the transfer could not constitute an adverse employment action because the professor had agreed to it and because the University had legitimate reasons for the transfer.  The Court rejected the University’s position, holding that a reasonable jury could find that the transfer was disadvantageous to the professor and that it would not have occurred but for the professor reporting her department chair for sexual harassment. 

 The Court held that the University’s “shifting justifications for the change in

[the professor’s]

teaching responsibilities” associated with the transfer supported the Court’s decision.  The University offered different explanations for why the professor’s teaching responsibilities changed, including: (1) the change was a natural result of the professor transferring to a new department; (2) the University wanted the professor to teach a wider variety of courses; and (3) the change occurred because the professor was not communicating well with her harasser.  A jury could infer from the defendant’s “changing explanations” that the University’s stated explanation for the change in the professor’s teaching responsibilities was not accurate, the Court held. 

If you believe you have suffered employment discrimination, you should contact an attorney such as Benjamin T. King, Esquire, at Douglas, Leonard & Garvey, P.C. experienced in representing employees in such claims.  Attorney King can be reached at 1-800-240-1988 or fill out our online contact form

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