“Bring Your Child To Work Day” Debacle Results In Employees Suing – And Winning – For Retaliation

In E.E.O.C. v. EmCare, Inc., 857 F.3d 678 (5th Cir. 2017), the Fifth Circuit affirmed a jury verdict finding that an employer had illgally retaliated against its employee for complaining about sexual harassment.

McKinney, a CEO of an EmCare division, repeatedly sexually harassed women at work. Trahan (a male) and others complained to EmCare about it, but nothing was done. On “Bring Your Child to Work Day,” McKinney told an employee that ”there is no way [her daughter] is 15 with breasts like that.” The employee and two others, including Trahan, complained. Six weeks later all three of the employees who complained were fired. The EEOC sued, and all three prevailed at trial. EmCare appealed only as to Trahan, claiming that the decisionmaker who allegedly decided to fire him, the divisional COO, had no knowledge of any of Trahan’s complaints about McKinney, so he could not have fired Trahan because of his complaints.

The Fifth Circuit affirmed the judgment. It noted that McKinney and the divisional COO were executives in the same division; there was evidence McKinney knew about Trahan’s complaints; and evidence that McKinney discussed Trahan’s performance and termination with the divisional COO. The Fifth Circuit found that from all this evidence, a reasonable jury could have logically inferred that McKinney told the divisional COO about Trahan’s complaints.

Alternatively, there was substantial evidence that EmCare’s HR VP knew about Trahan’s complaints, and that she orchestrated and participated in the decision to fire him. Thus, even if the divisional COO did not know about Trahan’s complaints, there was sufficient evidence that the HR VP did, and that she was also a decisionmaker, which would independently be enough to hold EmCare liable.

This case illustrates the reality that where employers fire employees very shortly after they make legitimate complaints of sexual harassment, lawsuits for retaliation often follow. And, unless the employer can clearly and convincingly demonstrate that it had a solid, non-retaliatory reason for firing the employee, or that the decisionmaker absolutely did not know about his or her complaints, juries often find that retaliation occurred. The case also teaches that when the facts are as bad as they were here, the court of appeals may also understandably take a dim view of the employer’s appeal from a losing jury verdict.

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