The First Circuit Court of Appeals issued a ruling on the interesting question: Under what circumstances, if any, can an employer be held liable for sex discrimination under Title VII of the Civil Rights Act of 1964 when it terminates a worker whose job performance has been maligned by a jilted co-worker intent on revenge?
The Sordid Tale
Even more interesting are the facts of the case. In November 2007 Mr. Velasquez-Perez was promoted to the Regional General Manager for Developers Diversified Realty Corp (“DDR”). He became acquainted with Ms. Martinez, an HR representative for DDR. They communicated frequently. They flirted with one another and Ms. Martinez expressed a romantic interest in Mr. Velasquez-Perez.
In April 2008 Ms. Martinez tried to force her way into the hotel room of Mr. Velasquez-Perez. He would not let her in. The two then exchanged angry emails. She had seen him earlier with two female employees of the company and believed that Mr. Velasquez-Perez intended to have sexual relations with one of them. He informed Ms. Martinez that he did not want to have a romantic relationship with her and asked her to respect his decision.
Ironically, Mr. Velasquez-Perez complained to management on at least two occasions, describing the actions of Ms. Martinez. From the limited record, it does not appear that anything was done.
After being rebuffed, Ms. Martinez made veiled threats that she could get Mr. Velasquez-Perez fired. Ms. Martinez then started a dialog with managers suggesting that DDR fire Mr. Velasquez-Perez. Company representatives initially suggested a performance improvement plan (“PIP”) instead of termination of employment. However, after another company meeting where Mr. Velasquez-Perez was staying in a hotel, and where Ms. Martinez was again denied entrance into his hotel room, Ms. Martinez insisted that a PIP would not be sufficient, and that termination of employment was the only viable option.
DDR management apparently agreed and terminated the employment relationship in August 2008, less than one year after the promotion of Mr. Velasquez-Perez to Regional General Manager.
The Court’s Analysis
The court was not satisfied that Ms. Martinez was the supervisor or Mr. Velasquez-Perez, which would have imposed strict liability on the company. Nevertheless, it concluded that DDR could still be held liable for the discriminatory acts of Ms. Martinez, as a co-worker, if the company knew or should have known what she had done.
In the court’s own words, an employer can be held liable if: “the plaintiff's co-worker makes statements maligning the plaintiff, for discriminatory reasons and with the intent to cause the plaintiff's firing; the co-worker's discriminatory acts proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the co-worker's acts to achieve their desired effect though it knows (or reasonably should know) of the discriminatory motivation. Here, a reasonable jury applying this test could find in favor of Velásquez.
There’s the answer to the interesting question. If a co-worker acts in a discriminatory manner, and if the company is negligent and as a result the victim suffers adverse action, liability is imposed.
After all of this I am left with another interesting question that I hope is answered as this case progresses: Why didn’t the company take action after Mr. Velasquez-Perez complained? I just don’t get it.
You can read the case here: http://caselaw.findlaw.com/us-1st-circuit/1667637.html