Is it legal to fire an employee for helping a co-worker report harassment? Some courts have said yes, but Penn State Law’s Civil Rights Appellate Clinic is taking a stand. The Clinic representing the National Employment Lawyers Association filed an amicus curie brief with the U.S. Court of Appeals for the Fourth Circuit. The Clinic argued that employees who assist a co-worker in utilizing an employer’s anti-harassment policies and procedures should be protected from retaliation under both the opposition and participation clauses of Title VII’s anti-retaliation provision and under the Supreme Court’s application of the retaliation provisions to third-party plaintiffs in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011).
“We wanted to take on this case because it gives the Fourth Circuit its first opportunity to apply the Supreme Court’s holding in Thompson and make it clear that employers cannot punish third parties as a means to silence those who were discriminated against,” said third-year Scott Stedjan.
In this case, J. Neil DeMasters was an employee assistance counselor employed by Carilion Clinic. DeMasters counseled another employee, who was a victim of severe sexual harassment, and assisted him in utilizing Carilion’s sexual harassment reporting procedure. Although DeMasters simply followed Carilion’s own sexual harassment reporting policy, the company fired DeMasters, noting that he was terminated for not considering the “best interests of Carilion” and for “exposing Carilion to liability for sexual harassment.”
In response, DeMasters filed suit in the U.S. District Court for the Western District of Virginia, arguing that he had been unlawfully retaliated against under Title VII. The district court disagreed, and dismissed DeMasters’ case on a 12(b)(6) motion to dismiss.
The Clinic, which collaboratively decides which cases to take on, felt compelled to advocate for meaningful Title VII protection for employees such as DeMasters because of the possible implications this decision would have on employees assisting one another in utilizing an employer’s own anti-harassment policies and procedures.
“Taking on the DeMasters case was important to ensure that employees who help their co-workers identify and report sexual harassment are protected from employer retaliation,” said third-year law student Jordan Feist.
In addition to Stedjan and Feist’s contributions, SaraAnn Bennett (‘14), Cynthia Bubniak (‘15), Brittany Mouzourakis (‘14), Chad Stevenson (‘14), and Dwayne Wright (‘15) worked collaboratively to co-author the Demasters amicus brief under the supervision of Clinic Director Michael Foreman. The case may be set for oral argument later this spring.