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Post-suit retaliation drives court to issue preliminary injunction against dealership in sexual harassment case

February 7th, 2012  |  Sheryl Allenson

When faced with an  employment discrimination class action lawsuit, lobbing threats of violence and other retaliation toward the employee and his coworkers is one sure way to escalate the situation. An Albuquerque car dealer that had been sued by the EEOC on behalf of a class of men who claimed to have been severely sexually harassed was further barred from threatening or retaliating against employees or witnesses who might participate in the employment discrimination lawsuit.  A federal district court in New Mexico entered a preliminary injunction against the company (EEOC v Pitre, Inc, January 26, 2012, Black, B). While it stands to reason that physical threats and vandalism are impermissible, employers must be certain to educate both management and non-management employees that it is illegal to retaliate against individuals for engaging in protected activity, such as in this case, suit against the employer.

Harassment only part of the problem.  In this suit, the EEOC alleged that for more than a decade, male employees were subject to sexually harassment, sometimes on a daily basis, by a male lot attendant. The EEOC detailed a hostile work environment filled with graphic pornography and egregious conduct; male employees were subject to a “car wash initiation,” when the new employees were forced to ride though the car wash with the lot attendant, who would expose himself and grope at the new employee. Although the conduct often occurred in the presence of managers, the suit alleged that they failed to stop it and, instead of intervening, actually encouraged it.

Threats, vandalism, job interference. But the sexual harassment allegations were just the tip of the iceberg. After the EEOC filed suit, one of the interveners found his car vandalized with a threatening message on his windshield. The employee received death threats and found his job offer at another dealershiprescinded after his former general manager placed a call to the new dealership. Armed with knowledge of their employer’s conduct, many other men interviewed expressed concern for their safety, as well as for being blackballed in the industry.

Immediate danger. The EEOC claimed that there was an immediate danger of “substantial and irreparable injury” to the employee, class members, witnesses, and potential class members due to intimidation. In its findings of fact, the court acknowledged that the employee had been subject to death threats, vandalism to his personal property, and job interference. Numerous other potential class members felt in intimidated by their employer, expressing concern about their jobs and being blackballed in the industry.

Injunction means employer’s options get limited.  As a result of the dealership’s retaliatory actions, the court concluded that the EEOC was entitled to preliminary injunctive relief. It  placed strict limits on the car dealer. While the employer would not be prevented from engaging in its defense, only its attorneys would be permitted certain access to witnesses. With the exception of the employer’s attorneys, the employer, its managers, owners, officers, agents, employees and others would be enjoined from:

  •  Interviewing any employee and current non-management dealership employees about the facts and/or defenses of the lawsuit outside of the presence of the EEOC’s counsel.
  • Contacting potential class members who are former employees outside of the presence of the EEOC’s counsel.
  • Threatening or retaliating against any individual who participates in any manner in the lawsuit.
  • Offering any designated individual money in exchange for testimony.
  • Contacting any dealerships in the county to encourage them to blackball  individuals because of their participation in the lawsuit.

This was in addition to the more typical affirmative obligations placed on the employer, including educating employees not to retaliate against individuals engaged in any activity protected by antidiscrimination laws, including a lawsuit. 

Charges of retaliation by employers against employees who have complained of discrimination once again are the most frequently filed charge with the EEOC. Retaliation accounted for 37.4 percent of the EEOC’s charges in 2011. And it is likely this trend will continue. Counsel need to be vigilant after litigation is filed to ensure that employers aren’t attempting to take matters into their own hands and, in so doing, turn a tough lawsuit into one that is almost impossible to defend.