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Is it Ok to Fight back? Sexual Advances In the Workplace.

That was the argument the Eastern District of Pennsylvania was met with in the case of Speed v. WES Health System1 in February of this year. WES's employee, Shameka Speed had complained to her boss on several occasions that her male coworker was making sexual and derogatory advances toward her in the workplace. Despite her reports and protests, Speed was forced to continue to work with the employee and when the advances peaked, she fought back. Ultimately, both employees were fired.

WES Health System hired Speed as a behavior health worker. From the outset she was required to work in close proximity to Macon Garway, a clinical coordinator for WES. Over a series of months, Garway made sexual advances toward Speed, including remarks, innuendos and suggestions that the two ought to engage in sexual relations. Garway's behavior became so offensive and hostile that Speed had no choice but to report it to her supervisor. In fact, Speed was not the only one to do so. Other female employees reported Garway's advances and, despite their doing so, WES did nothing to correct or otherwise remediate the harassment in the workplace.

Garway didn't stop at words or gestures, indeed his sexual advances escalated to physically touching Speed who cautioned him that if he touched her again, she would fight back. Rather then deter Garway, Speed's warnings seemed to have the opposite effect - ultimately Speed fought back. The next time Garway reached out to touch Speed, she struck him, stopping his advances immediately in their tracks. As a result of this incident, WES conducted an investigation. It proved Speed had been a victim of workplace sexual harassment causing WES to terminate Garway's employment. WES, however didn't stop there. WES also terminated Speed on the grounds that she her striking Garway amounted to assault of a coworker subject to termination.

Speed filed a lawsuit against WES alleging sexual harassment, a hostile work environment, and retaliation in violation of Title VII and the Pennsylvania Human Relations Act. WES sought to dismiss the retaliation claim arguing Speed acted unlawfully when she struck back and admitted to hitting Garway. WES claimed then that because Speed admitted to hitting Garway, she could not demonstrate WES's reason for terminating her was pretextual. The Court disagreed.

Citing holdings from the Eight and Ninth Circuits, the district court rejected WES's attempts to bar Speed's claim explaining that if an employee is ultimately fired for defending him/herself from a hostile work environment that employers failed to reasonably address, the termination cannot be said to be free from discrimination. Indeed, while the Court was not asked to determine whether Speed's conducted was "protected activity" under Title VII, the opinion certainly lent indication to which way the court would have gone had it been asked to address the issue.

If you believe you are a victim of work place violence, sexual harassment or workplace discrimination, contact the experienced attorneys at The Pagano Law Firm who will fight to protect your rights. Ask about our free consultations.

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