Retaliation/Whistleblower

Back in September we described a case of same sex harassment and retaliation at a small mom & pop type business. It may be no surprise that a company with only a few employees and no compliance department would fail to prevent violations. But as a recent lawsuit by the Equal Employment and Opportunity Commission

To state the obvious: yes, sexual harassment is not limited to men harassing women and yes, same sex harassment exists. Perhaps it is rarer, but it does happen. What almost certainly happens less often in 2020 than in prior decades—given the prevalence of corporate anti-discrimination policies, trainings, HR personnel and an increased cultural awareness—is brazen, unapologetic harassment, compounded by retaliatory termination. But that is what the Equal Employment Opportunity Commission (EEOC) alleges occurred in a lawsuit it filed on behalf of a terminated employee in central Florida in July.

And, since harassment is usually more subtle and less egregious than that alleged in this EEOC lawsuit, the lawsuit might be a good case study, a blueprint, a same sex sexual harassment archetype of the type of conduct employers must vigorously seek to prevent and avoid.

The complaint can be found here.

The EEOC alleges that Defendant Shelley’s Septic Tank (“Shelley’s”) and its owner, Mr. David Shelley, employed Richard Colon as a truck driver from February 2017 until May 2018. According to the EEOC, Shelley subjected Mr. Colon to a sexually hostile work environment, both through comments and physical contact.

The “unwelcome, sexually charged comments”, included Mr. Shelley:

  • calling Mr. Colon “buttercup” near daily;
  • calling Mr. Colon “pretty” after he shaved or trimmed his beard; and
  • “plac[ing] his hands in a diamond around his penis and [telling] Mr. Colon to ‘back up to this’.”

The EEOC also alleged Mr. Shelley engaged in “unwelcome, sexual conduct and physical contact” against Mr. Colon, including:

  • “stroking Mr. Colon’s arms and leg”;
  • “blowing kisses at Mr. Colon”;
  • “on one occasion, [using] a stick to poke Mr. Colon between his butt cheeks;” and
  • On one day “grabb[ing] Mr. Colon’s buttocks over his clothes and [running] his finger between Mr. Colon’s butt cheeks.”


Continue Reading Same Sex Hostile Work Environment and Retaliation: A Case Study

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