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Retaliation case against Wayfair revived

Wayfair is expected to face trial on a former employee’s claim of retaliation, following a ruling issued by a federal appeals court in the case of Forsythe v. Wayfair.

The employee claimed that Wayfair terminated her after she made allegations of sexual harassment.

The plaintiff, Emily Forsythe, sued her former employer claiming sex harassment, sex discrimination, and retaliation. Initially, a district court dismissed her claims. However, the 1st U.S. Circuit Court of Appeals partially overturned the ruling, finding the retaliation claim could advance.

One issue in the case is whether the plaintiff was terminated or resigned. After Wayfair’s internal investigator informed Forsythe that he could not substantiate her claims of sexual harassment, Forsythe told him she would be interested in a severance package. The plaintiff indicated the terms of the package would be a starting point for discussion.

Subsequently, Forsythe received an email with a severance agreement attached, stating that the company had accepted her resignation.

The appellate court’s opinion said that a reasonable juror could find that Forsythe had never offered to resign and had merely inquired about a severance package. A juror could also find that Forsythe reasonably understood the email accepting her resignation as an involuntary termination, the court said.

Further, according to the court’s opinion, a juror could potentially find that Forsythe’s termination was linked to her allegations of sexual harassment. The decision-makers at Wayfair who allegedly terminated Forsythe’s employment were aware of her allegations. Forsythe made complaints two months in a row and received the alleged termination email within days of her second complaint.

The court allowed the rest of the district court’s decision to stand. That means that Forsythe’s retaliation claim can go forward, even though her allegations of harassment were not found to be actionable.

Generally, HR leaders should conduct a prompt and thorough investigation into complaints of sexual harassment and discrimination. Employers must then be careful to avoid retaliation, even if the employee’s claims cannot be substantiated.

Likewise, a request for a severance package cannot be equated to a voluntary resignation. An employee who enquires about severance is initiating a process that must be followed carefully, not treated as an automatic exit.