No doubt you have heard many times that retaliation is anything that would dissuade a reasonable employee from complaining about something in the first place. But minor actions usually don’t add up to retaliation.
Unfortunately, the 2nd Circuit Court of Appeals, which has jurisdiction over New York employers, has now muddied the retaliation waters.
The court recently concluded that the measure of whether something is retaliatory isn’t just what a reasonable employee would think. Instead, the measure is whether a reasonable employee in that particular job would consider a act threatening enough to discourage complaining.
As a practical matter, the new ruling means those who hold lower-level jobs may claim retaliation even if the alleged retaliatory behavior seems minor.
Recent case: Roberta Faul worked for the U.S. Postal Service and filed an EEOC complaint. Fifteen months later, her supervisor ordered a position audit that eventually concluded that her job was unnecessary and could be eliminated.
During the 15-month interval, Faul and her boss got into many arguments, and Faul believed he wanted to get rid of her. At one point, Faul was suspended for seven days. However, the suspension was rescinded before she lost any pay.
Faul said both the audit and the suspension were retaliation for complaining to the EEOC.
The 2nd Circuit Court of Appeals said the audit, even though 15 months had passed, could still be retaliation, given the rancorous relationship between Faul and her boss after she filed the complaint. It concluded a jury should decide whether a reasonable employee holding Faul’s particular job would be dissuaded from filing the initial EEOC complaint. (Faul v. Potter, No. 09-0173, 2nd Cir., 2009)
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