Employees who complain about discrimination are protected from retaliation—but not from every consequence of their complaint.
Take, for example, what often naturally occurs when someone files a harassment complaint that turns out to be unfounded or unworthy of drastic action like firing the alleged harasser. There’s bound to be backlash from other employees who fear they may end up being targets of a complaint. They may avoid the employee who filed the original complaint.
Such ostracism isn’t retaliation.
Recent case: Theresa Sutherland worked as a corrections officer and complained a co-worker had sexually harassed her. She had a history of filing numerous grievances, both before and after this one.
launched an investigation and concluded that the harassment hadn’t been severe. It did suspend the harasser while investigating and then ordered him to undergo sexual harassment training.
Meanwhile, Sutherland began to hear employees talk about avoiding her for fear she would file grievances against them. She sued, alleging sexual harassment and retaliation.
The court said her underlying sexual harassment complaint wasn’t serious enough to create a hostile work environment—and concluded that her co-workers’ actions weren’t retaliation. (Sutherland v. Missouri Department of Corrections, No. 08-3000, 8th Cir., 2009)
Final note: Sutherland’s employer did everything right. It promptly investigated the complaint, separated her and the co-worker and quickly launched an investigation. The fact that co-workers avoided Sutherland was a predictable consequence—not retaliation.
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