Can You Fire An Employee for Hitting a Coworker? What If He Was Harrassing Her?

Posted by Edward Sharkey on Thu, 05/07/2015 - 04:00

Employers can get into trouble if they discharge an employee after he or she has complained about workplace sexual harassment. If the employee proves the termination was retaliation for the complaint, the business can be liable. This is true even if the original complaint was unfounded. A Pennsylvania court recently considered a retaliation case with a twist: an employee hit her coworker, and she claimed it was because of harassment.

In Speed v. WES Health System, an employee had filed various complaints about a coworker for sexually harassing her. Subsequently, the employee slapped the coworker. The business terminated the employee.

The employee sued, claiming that the termination was retaliation for her complaints. The business moved to dismiss on the ground that she was terminated for the physical attack, which is a valid basis for termination. The court held that, because the employee had filed complaints about her coworker before the slap, she was entitled to pursue her claim for retaliation.

In its order, the Court made it clear that it will examine these types of incidents in a factually intensive manner. Such altercations will be evaluated in the context in which they occurred. Here, the employee, along with other coworkers, had complained to her employer multiple times about her coworker’s conduct. The company allegedly failed to take any action to remedy the situation.

The employee alleged that she struck her coworker as a reflex after her alleged harasser tried to grope her again. Both the employee and the coworker were fired the next day. The employee argued that she was not fired for the violent act, but in retaliation for her harassment complaints.

In considering the employer’s motion to dismiss, the court found that even though a substantial amount of time had passed between the employee’s complaints about harassment and the altercation, a reasonable jury could conclude that she was fired in retaliation. It would be for a jury to decide whether the slap was an appropriate response to the coworker’s alleged actions.

The judge was careful to distinguish this case from another where an employee slapped a coworker for making an offensive comment. It noted that there is a substantial difference between an employee defending herself from a physical groping and responding violently in protest of comments.

The EEOC recommends that courts consider claims from the employee’s perspective, so employers should take note of the circumstances surrounding similar altercations. An important factor to the courts in such situations is also whether the employee has filed previous complaints.

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