No retaliation against co-workers who testify

by on
in Employment Law,Human Resources

It can be frustrating for supervisors and managers when an employee files a lawsuit they honestly think is bogus. It only gets worse if other employees testify on behalf of the employee. When the case ends up being dismissed, it’s natural for managers to carry at least a slight grudge.

They no doubt understand that they can’t retaliate against the employee just because he brought a lawsuit. What they may not understand as clearly is that they can’t retaliate against the supportive co-workers, either. Make sure you emphasize that point when you’re conducting retaliation training.

And see to it that all employment decisions are supported by solid, well-documented reasons, reviewed with an impartial and independent eye. It’s the best way to guarantee that manager bias doesn’t creep into the system.

Recent case:
Darrin Smolinski sued his employer, the city of Pacific Grove, after he testified on behalf of a fellow employee who claimed he was a victim of a hostile work environment.

After his co-worker lost the first lawsuit, Smolinski filed his own. Smolinski, who is gay, said he also had suffered in a hostile environment because occasionally over a 10-year period he had heard others make anti-homosexual comments
—and that his bosses had retaliated against him for testifying in his co-worker’s case.

But Smolinski couldn’t point to anything specific other than co-worker comments over the years. His case was promptly dismissed. (Smolinski v. City of Pacific Grove, No. 068-1809, ND CA, 2009)

Final note: The city did everything right. There was no evidence that it tolerated any backlash against Smolinski. Too often, resentment rears its ugly head in such cases. That’s when employees win retaliation claims even though they lose the underlying discrimination claim.

Leave a Comment