Harassment by Association

legalCan an employee’s connection to someone in a protected class be the basis for a successful harassment lawsuit?

It may be, according to the California appeals court ruling that allows former firefighter David Derr to proceed with his claim that a supervisor regularly harassed him for defending his lesbian daughter.

Derr, employed by the Kern County Fire Department for 29 years, claims James Rummell—who became department captain and Derr’s supervisor near the end of Derr’s tenure—made anti-gay remarks in his presence sometime during Rummell’s first year as supervisor. Upon learning Derr’s daughter was gay, Rummell allegedly started to regularly harass him about his daughter’s homosexuality.

According to court records, the harassing behavior reportedly included comments about how gays were “led in that direction” or had experienced childhood traumas that “twisted” them, as well as emails sent to Derr from Rummell’s wife saying his acceptance of his daughter’s homosexuality was a “blatant opposition to the commands of God.” Court records indicate Derr told Rummell he “did not want to hear any more such commentary,” and reiterated that he had a gay family member.

Derr was eventually granted a shift change, but Rummell allegedly continued to stay behind after his own shifts ended in order to further harass Derr, who began to show physical symptoms of stress including insomnia, chronic diarrhea and headaches. Derr attended counseling, but the fire department’s employee assistance program terminated the sessions after three appointments, reportedly informing Derr that “no further treatment was available” and that he should “suck it up” with regard to handling his treatment at the hands of Rummell.

Derr ultimately retired in July 2009, citing Rummell’s abuse among the reasons. He subsequently sued the department, claiming harassment. A lower court dismissed Derr’s complaint, but the appeals court decision reversed that ruling.

This state-level decision only applies to California-based companies, but exemplifies a “noticeable trend” in the workplace, says Ron Chapman, Jr., a Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

“Employees are becoming increasingly assertive, and that includes speaking out against perceived wrongs toward others,” says Chapman. “In other words, even when the employee affected by the alleged misbehavior does not complain, one of his or her co-workers might.”

Employers and HR leaders must react accordingly to protect employees as well as the organization, he says.

Depending on the circumstances, it could be unlawful if the person who complains becomes the target of harassment or retaliation, even if the underlying behavior complained about was directed at someone else. To help avoid liability and promote best practices, human resource professionals should update their policies and training programs to ensure they cover this type of scenario.”

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