Dive Brief:

• Wayfair must face a former employee's claim of retaliation, the 1st U.S. Circuit Court of Appeals ruled, partially overturning a lower court's decision (Forsythe v. Wayfair, No. 21-1095 (1st Cir., Feb. 28, 2022)).
• The employee, a senior manager, reported alleged sexual harassment to the company — an event that set off an investigation, conversations about her resignation and, ultimately, the worker's departure from the company. After the worker left, she sued the company claiming sex harassment, sex discrimination and retaliation. 
• A district court dismissed all three of her claims, but the 1st Circuit partially overturned the ruling, finding the worker's retaliation claim should get a second look. Wayfair did not respond to a request for comment by press time.

Dive Insight:

In Forsythe, the plaintiff contended that Wayfair terminated her in retaliation for complaining about a co-worker's misconduct. The district court disagreed, noting that the record showed she had not been terminated but had offered to resign.

The 1st Circuit dissected the record in some detail to conclude that the worker may not have resigned from her job. The employee asked the HR representative who handled the investigation of her claims to organize a conversation about a "compelling severance package." The employee specifically stated that the terms of the package would commence a discussion about her exit from the company. 

Several days later, however, the rep sent the employee an email containing a separation agreement. The email stated that Wayfair had accepted her resignation.

"A reasonable juror could find on this record that [the plaintiff] did not offer to resign while inquiring about a severance package," the appeals court opined. "In addition, precisely because [the plaintiff] had not made an offer of resignation for Wayfair to accept, a reasonable juror could find that she reasonably construed [the] email purporting to accept her resignation on September 23rd as an involuntary termination that required no clarification."

The 1st Circuit departed from the district court yet again when it said the employee's termination could be linked to her protected activity. The worker complained about sexual harassment and retaliation on Aug. 19 and Sept. 19, respectively. On the Monday following the second instance, Wayfair sent an email marking the end of her employment.

The decision-makers at Wayfair who allegedly terminated the worker's employment were aware of her protected conduct, the 1st Circuit pointed out. Considering the timing of the workers' complaints and her departure from the company, a juror could draw a connection between the two events, it said.

The appellate court left the rest of the district court's decision intact. It found, for instance, that the lower court had not erred when it ruled that the plaintiff had failed to show that the employer was liable for the alleged harassment she experienced. Because the misconduct came from a co-worker rather than a supervisor, the plaintiff needed to show that Wayfair failed to properly address the alleged harassment. Moreover, she had not shown that the alleged harassment was "sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment," a standard that federal law requires.

Managment-side attorneys frequently recommend that HR pros thank an employee who lodges a complaint, conduct an investigation and take any necessary remedial action. Employers also must avoid retaliation, which can be a standalone violation, even if the employee's initial complaint is deemed meritless.