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Employee’s Failure to Immediately Report Incident Defeats Retaliation Claim

An employee's failure to immediately report certain workplace incidents, as required by either an employee handbook or a supervisor’s instruction, constitutes a valid reason for an employer to fire the employee and defeats retaliation claims by that employee. So says the U.S. Court of Appeals for the Seventh Circuit, according to a recent decision handed down in Chicago. 

In Lord v. High Voltage Software, Inc., an employee reported that he had been sexually harassed by male co-workers. After the employee first reported the harassment to human resources, the company investigated the matter, met with the employee, told him that the incident did not rise to the level of sexual harassment, and told the employee to report any further harassment allegations to human resources “immediately.”

The employee then allegedly suffered other incidents of harassment, but failed to immediately report those subsequent incidents to human resources as directed. The employer subsequently disciplined the employee for certain performance issues unrelated to the harassment allegation. The employee then accused the company of retaliating against him for having reported the initial sexual-harassment incident to human resources. After discussing the performance issue with the employee, the employer withdrew the employee’s disciplinary write-up, but the employer fired the employee the next day for, among other reasons, having failed to immediately report the second harassment incident to human resources as instructed.

The employee sued for retaliatory discharge, claiming that the employer had fired him for having reported the initial incident of alleged harassment. The Seventh Circuit, however, noted that when confronted with an employee’s circumstantial evidence of a retaliatory motive, the employer may show that it would have fired the employee even absent his complaints about harassment. 

The Court also noted that the employer had presented evidence of several non-retaliatory reasons for its decision to fire the employee, including the employee’s failure to immediately report allegations of harassment to human resources as instructed. Because the employee conceded that he had not immediately reported the second allegation of harassment to human resources as instructed, the Seventh Circuit held that the employer’s reasons for firing the employee were not pretextual, and therefore could not form the basis of a retaliatory discharge claim.

Many employers, especially those in regulated industries such as health care, construction, and food processing, require employees to “immediately” report certain incidents, both because statutes and regulations require the employer to immediately report certain incidents to government regulators, and because the employer itself needs to immediately address certain types of issues internally. Frequently, however, after an employee fulfills his or her obligation to immediately report incidents as required, that employee may engage in unrelated inappropriate conduct, but the employer may be afraid to discipline or terminate the employee for such unrelated misconduct out of concern that the employee will bring a retaliation claim.

The Lord case provides such employers with a higher level of comfort. As long as the employer can establish that it disciplined or terminated the employee for engaging in unrelated misconduct — in this case, the failure to immediately report subsequent incidents of alleged harassment — then the employer should be able to defeat retaliation claims brought by the employee.

© 2020 Much Shelist, P.C.National Law Review, Volume VII, Number 61


About this Author

Robert Neiman, health care regulatory counseling attorney, Much Shelist, Law Firm


Bob Neiman, co-chair of the firm’s Health Care practice, is an experienced litigator who focuses his practice on health care regulatory counseling and litigation, employment-related counseling and litigation, and commercial litigation, including insurance coverage matters and other business disputes.

Bob thinks like a businessman, not just a lawyer. After considering the legal ramifications of a business problem, Bob's strength is taking his lawyer's hat off and helping clients decide on the most practical and cost-effective way to solve the business problem.


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