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Watch out for retaliation—even if employee never made formal discrimination complaint

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources,Leaders & Managers,Management Training

Employees who come to HR with complaints about alleged discrimination are protected from retaliation, as are employees who go to the EEOC or state and local anti-discrimination agencies.

But what about employees who voice informal complaints? They’re protected from retaliation, too.

That’s true even if all they did was simply voice concerns about how the company is treating other employees.

In other words, employees don’t have to use your formal complaint system to register concerns about direct discrimination. They can complain to a supervisor or someone else in authority and gain retaliation protection that way.

Recent case: Kathy Baker, who was 53 years old, worked as the director of an assisted-living facility. She had authority to discipline and evaluate the employees who worked for her at the home.

When personnel changes made the next level of management considerably younger, Baker claimed she began hearing comments about the company’s desire to become more youth oriented.

She said a supervisor told her she “dressed like an old lady” and should try to keep up with the new, younger management team. She said she had been told to get rid of “dead wood,” which she took as a directive to hire younger applicants to replace older workers.

Then, Baker said, new managers told her she needed to discipline and terminate older employees in order to hire younger ones who would work for less money and with more enthusiasm and energy. Baker refused to do so, telling her boss, “You cannot get rid of employees just because they are old.” Baker claimed she was instructed to make life hard for older workers so that they would voluntarily leave.

Then Baker was fired, allegedly for minor problems such as not calling in sick. She sued, alleging retaliation for standing up to her supervisors’ alleged age discrimination.

The trial court tossed out the case because Baker had never lodged a formal complaint with HR or anyone else.

But the 8th Circuit Court of Appeals reversed the lower court’s decision and ordered a trial. It reasoned that refusing to go along with what might be a case of age discrimination was a form of protected activity.  A jury will now decide whether the company fired Baker for refusing to participate in age discrimination. (Baker v. Silver Oak Senior Living, No. 08-1036, 8th Cir., 2009)

Final notes:
The EEOC participated in this case, arguing that employees such as Baker must be protected from retaliation for doing the right thing. Its involvement signals that it takes such cases very seriously. Rest assured that the agency will listen when employees claim age discrimination.

This case is a clear indication that employers must make efforts to weed out a “youth culture”—especially when practiced by management. It may be hard for HR professionals to speak truth to power, but courts, at least, are willing to support those who do by protecting them from retaliation.

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