Two former members of the Sacramento Kings dance group have filed a lawsuit against the team and the dance troupe’s choreographer. The dancers allege they complained about the choreographer’s pattern of sexual harassment and were not re-selected for the team in retaliation. The Sacramento Kings dance group lawsuit highlights the responsibility of employers to ensure safe and respectful workplaces.

Factual Allegations

According to the complaint, the two women were hired as dancers in the summer of 2022. According to the complaint, the two women witnessed various forms of alleged sexual harassment. The allegations extend beyond individual incidents. The dancers assert that the harassment was pervasive and created a hostile work environment.

One woman claims she witnessed the choreographer inappropriately touching other dancers throughout her employment. The other woman claims she overheard dance partners complain about the choreographer touching them inappropriately.

Both women claim that they reported the harassment. One woman said she complained about the choreographer to human resources via email, but her complaint was ignored. The other woman said she made a complaint to the dance team’s coach about the choreographer, but the misconduct continued.

Both women auditioned for the following season but were not selected. The lawsuit alleges that they were not re-hired because they brought up their concerns about the choreographer.

So far, the team disputes the allegations and says that the complaints had nothing to do with their selection decisions.

Lessons for Employers

1. Conduct not directed at the complainant can create liability

While some of the conduct was directed at the two dancers, other incidents of the harassment were allegedly targeted at other dancers. Employers should be aware that they can be sued for sexual harassment even if the harassment was not targeted at the employees bringing suit.

The Equal Employment Opportunity Commission’s (“EEOC”) PROPOSED Enforcement Guidance on Harassment in the Workplace addresses conduct that is not directed at the complainant. The Guidance explains that conduct may even occur outside of the complainant’s presence. This is provided that the complainant knew about the conduct and the conduct sufficiently related to the complainant’s work environment.

The harassing conduct can affect an employee’s work environment even if it is not directed at that employee. For example, using gender-based slurs and epithets may create a hostile work environment even if the slurs and epithets are not directed at them.

Similarly, anonymous harassment, such as racist, anti-Semitic graffiti or display of a noose or swastika, may create a hostile work environment. It may be anonymous harassment even if it is not clearly directed at any particular employees. Thus, an individual who has not personally been subject to unlawful harassment may file an EEOC charge and a lawsuit. The individual can allege that they have been harmed by unlawful harassment of a third party.

2. Be aware of retaliation

Retaliation remains the most filed basis for a charge with the EEOC. Given this, employers should be aware of what constitutes a claim of retaliation. To establish a claim of retaliation, an employee must prove three elements:

1. The employee engaged in statutorily protected activity;
2. The employee suffered an adverse action; and
3. That the adverse action was causally related to the protected activity.[i]

An employee’s complaint about discrimination constitutes protected activity if the employee could reasonably form a good faith belief that the alleged discrimination existed. An employee can also engage in protected activity by filing a charge, or testifying, assisting, or participating in any manner in the investigation, proceeding, or hearing under the applicable law.

Second, the general test to determine whether an employer’s action is retaliatory (i.e., adverse) is whether the action might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Courts are not uniform in how they apply this test. Typically, an adverse employment action is any action that materially affects employment by altering the employee’s compensation or other employment terms, condition, or privileges.

As to the third element, causation, retaliation claims require proof that the protected activity was a but-for cause of the alleged adverse action by the employer. In other words, a complainant must prove that had the employee not complained, the adverse action never would have happened.  Several types of evidence can help determine whether causation exists, including:
(1) close temporal proximity between the protected activity and the adverse employment action; or
(2) prior documentation of the complaining employee’s performance.

3. Be proactive

The Sacramento Kings dance group lawsuit raises important issues regarding workplace culture and compliance with employment laws. Employers should be aware of the legal ramifications of harassment, retaliation and a hostile work environment. They should also take proactive steps to maintain a positive work environment.

Important steps include the following:

• Implement Clear Policies: Develop and communicate clear anti-harassment and anti-retaliation policies. Ensure that the harassment policy provides alternative avenues for complaints and prohibits retaliation.
• Train Employees: It is not enough to have sound policies. Also, train supervisors and employees on harassment and anti-retaliation policies. This will allow them to understand what conduct is prohibited and what behavior is expected. Make sure employees know how to report concerns without fear of retaliation.
• Encourage Reporting: An employer cannot fix a problem if it does not know one exists. Encourage open and transparent communication so employees feel comfortable reporting concerns without fear of retaliation from the human resources department or otherwise.
• Document Performance Problems: Show that a performance problem existed prior to an employee’s protected activity. This can help negate the requisite causal connection to establish a retaliation claim. Also, maintain records of employee performance, evaluations, and disciplinary actions. This is critical. And, document the legitimate, non-retaliatory factors for discipline.

Conclusion

As evidenced by the Sacramento Kings dance group lawsuit, workplace harassment and retaliation claims continue to expose employers to liability. Take proactive steps, such as implementing sound anti-harassment and anti-retaliation policies, conduct training, and encourage reporting and consistent documentation of performance issues. This can go a long way in preventing claims and reducing liability.

Please let me know if you have questions or if you would like to learn more regarding harassment and retaliation prevention.

[i] Trask v. Sec’y, Dept. of Veterans Affairs, 822 F.3d 1179, 1193–94 (11th Cir. 2016).