The employer breaches the duty of care it owes to the harassed employee when the steps it takes in response to the harassment render her job demonstrably and significantly less rewarding or desirable. The harassment might cease as a result of these measures, but the plaintiff is effectively made to bear the costs. This case reiterates law across the country which clearly prohibits the victim of the alleged harassment from suffering adverse consequences of reporting the harassment. Change of hours, job duties, locations and such are considered by most courts to be adverse job action and retaliation. Often times business needs and the law conflict when the alleged harasser is valuable where he or she is and the victim does not contribute the same level of business service.
Creative solutions become imperative.
In reaching this decision, the Supreme Court found that the actions of an employer requiring an employee to undergo such an examination do not establish that the employer regards the individual as disabled under the ADA in cases where the testing is limited to an evaluation of whether the individual can perform the essential functions of his or her job. Sullivan v. River Valley, Mich., School District, 99-1706, petition for cert. Based on this conduct and the teacher's failure to participate in the fitness for duty examination, the school board suspended and later terminated the teacher. The teacher filed suit under the ADA, alleging that, while he was not disabled, the school district regarded him as having a mental impairment. A male employee's allegation that he was subjected to sexual harassment and retaliation by the female supervisor of a training program in which he participated is properly dismissed where the employee failed to utilize anti-harassment mechanisms within the company, and where the company took quick and appropriate action to investigate the employee's allegations.