SW Legal studies in Business

Employee May Be Fired for Improper Message Related to Alleged Harassment
Description Appeals court held that an employee had no cause of action for sex harassment. He claimed to have been harassed by another employee, but failed to complain to the employer. He was fired after he sent the other employee an unsigned message telling him to “stop.” That communication was not protected.
Topic Employment Discrimination
Key Words Sexual Harassment; Same-Sex Harassment; Actual Notice; Constructive Notice
C A S E   S U M M A R Y
Facts Todd Bernier worked at Morningstar for four years when, he alleged, Christopher Davis, who is openly gay, began to sexually harass him. Bernier claimed that Davis stared at him and otherwise made him uncomfortable. Bernier did not take advantage of Morningstar’s harassment complaint procedure to notify the company. Instead, he sent Davis an anonymous instant message through an internal company system. The message: “Stop staring! The guys on the floor don’t like it.” popped up on Davis’s computer. Davis, thinking he was being harassed, notified the Human Resources department. It investigated, traced the message to Bernier, and fired him. He sued Morningstar for sexual harassment. The trial court dismissed the suit; Bernier appealed.

Affirmed. The fact that Morningstar knew of the message Bernier sent to Davis did not give the firm actual notice or constructive notice of Bernier’s belief that he was subject to harassment. The message Bernier sent to Davis was not protected activity for purposes of Bernier’s claim that he was subject to harassment. He cannot sue the employer for retaliation, claiming he was dismissed for complaining about sexual harassment.

Citation Bernier v. Morningstar, Inc., 495 F.3d 369 (7th Cir., 2007)

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