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Counter retaliation claims by accurately documenting every employee complaint

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in Employment Law,HR Management,Human Resources

Employees who complain about alleged discrimination are protected from retaliation. But that doesn’t mean it’s protected activity every time someone calls HR to discuss what they think might be discrimination.

In order to be protected against retaliation, the employee has to make clear that he opposed an “unlawful employment practice.”

If the caller just generally complains his boss is harassing or discriminating against him—and doesn’t provide enough specifics to make HR think a Title VII or Ohio Revised Code right may be involved—then the call probably isn’t protected.

Of course, the caller may claim that he was very specific. That’s why it’s so important for HR to keep good records. That way, you’ll be able to show what really happened if you ever have to respond to a lawsuit.

Recent case: Michael Murray sold appliances at a Sears store. One day, a new manager came over while Murray was sitting on a mattress in the furniture department and told him that he needed to remove fingerprints from the appliances before going home.

Murray responded with a Nazi salute and a reference to Hitler. Several other employees saw the entire episode and later testified about it. The manager thought Murray’s behavior was insubordination and reported the incident to HR.

Meanwhile, Murray, who had been told to go home, also called HR, complaining that his manager had “harassed” him and that he had been sick that day. The next day, Murray wrote a letter explaining that he had been pushed to the brink and said something “unfortunate” because he was feeling sick and had a headache.

Regardless, Sears terminated him for insubordination. Murray sued, alleging that he had been retaliated against because he had complained about disability and other discrimination.

But the court looked over HR’s notes. The documentation made no mention of disability or other discrimination. HR did chronicle Murray’s report that he had been feeling sick that day and that his manager yelled at him about cleaning the appliances.

The court dismissed the case, reasoning that Murray hadn’t complained about anything vaguely resembling illegal discrimination. Sears couldn’t have been retaliating against him when it fired him. (Murray v. Sears, No. 1:09-CV-702, ND OH, 2010)

Final notes: This case offers more than lessons on how to respond to accusations of retaliation. It also makes clear that employers are free to discipline disruptive and disrespectful employees. Certainly, no manager has to put up with being identified with Nazi Germany. Murray couldn’t point to a single other employee who had done something as crass as he did without getting fired.

Remember, courts are loath to second-guess employer decisions on discipline—as long as it’s clear that the employer fairly and uniformly meted out discipline. And employees can’t escape responsibility for their actions by calling a company hotline to complain about nonspecific discrimination. Doing so doesn’t insulate them from legitimate discipline.

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