Atlanta Employment Lawyer Blog

The law of sexual harassment requires employees who believe they have been harassed to follow their employers’ anti-harassment procedures—which typically require employees to complain to a high company official in order to allow the company to remedy the situation—before they may file a sexual harassment lawsuit. A recent decision from the Eighth Circuit Court of Appeals, Adams v. O’Reilly Automotive, Inc., illustrates the perils of failing to file a timely internal complaint of sexual harassment.

In Adams, a female employee claimed that her supervisor had sexually harassed her for more than two and a half years. However she never reported the harassment to company officials, and when she did finally make a complaint through the company’s sexual harassment telephone hotline, her supervisor was almost immediately discharged.

The employee subsequently filed a sexual harassment lawsuit, but the employer moved for summary judgment. The company argued that the employee never filed an internal sexual harassment complaint despite the fact that the company had adopted and promulgated a zero-tolerance, multi-channel complaint procedure for sexual harassment claims, which the employee admitted she was aware of.

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Posted In: Sexual Harassment

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The Family and Medical Leave Act (FMLA) contains an anti-discrimination provision that prohibits employers from discriminating against employees “for opposing any practice made unlawful” under the FMLA. However, the text of the FMLA does not contain an express provision that prohibits retaliation against an employee simply for requesting or taking FMLA leave, and aggressive employers have tried to exploit this statutory gap by firing employees for requesting FMLA leave and then arguing that such retaliation is not prohibited under the FMLA.

This attempt was recently rejected by the Sixth Circuit Court of Appeals in Bryant v. Dollar General Corp. Although the Sixth Circuit does not have direct authority over the federal courts of Georgia, as the FMLA is a relatively new law and many of its details are still being fleshed out by the courts, it is important for Georgia employees to stay current with FMLA decisions in the other federal courts.

In Bryant, a female employee with diabetes filled out FMLA paperwork requesting a brief leave of absence. However, shortly thereafter, the employer launched disciplinary proceedings against her arising out of an alleged altercation that occurred about a month before the employee requested FMLA leave. The employee then took about a week of FMLA leave and was fired a few weeks later.

In the employee’s subsequent FMLA retaliation lawsuit, the employer argued that neither the text of the FMLA nor its regulations explicitly prohibit retaliation. According to the employer, the statutory language only prohibits discrimination against employees for opposing any practice that is unlawful under the FMLA, and the regulations only prohibit discrimination against employees who have used FMLA leave. The employer thus contended that there is no prohibition against FMLA retaliation.

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Posted In: FMLA

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