Employees who complain about alleged discrimination are protected from retaliation for doing so. In order for the employee to win a lawsuit, the retaliatory act must be adverse—that is, it must be an act that affects the employee in more than an inconsequential way.
In a recent case, an employee claimed that by merely ignoring her complaint, her employer was retaliating.
The 2nd Circuit Court of Appeals nixed that idea.
Recent case: Cynthia Fincher, who is black, worked as a senior auditor for Depository Trust and Clearing Corp. During a casual conversation with the senior employee-relations manager, she complained that at Depository Trust, “black people are set up to fail” and are not “given the same training opportunities as white employees.”
Fincher had the conversation after receiving areview. The review specified that she needed to improve her skills. If she didn’t turn her performance around, her supervisor counseled, she could be terminated.
When time passed and Fincher heard nothing from HR about the earlier conversation, she again told the employee-relations manager that black employees didn’t get the same training as white employees. This time, he asked her directly whether she was lodging a discrimination complaint. She said she was.
Still, the company didn’t investigate and Fincher quit. She then sued, alleging discrimination, hostile work environment and retaliation.
She tried to persuade the court that ignoring her complaint was itself a retaliatory action and that she had no choice but to quit once she realized her complaints would not be investigated.
The 2nd Circuit Court of Appeals disagreed and tossed out her retaliation claim.
It said that if it were to adopt her reasoning, “[a] person not in fact discriminated against could complain of discrimination nonetheless. If the miffed accused employer, were, because of his or her anger, to decline to investigate what was in fact a false claim, the employee might have a viable suit for retaliatory failure to investigate. We do not think that to be the law.”
Fincher didn’t fare any better on her hostile work environment claim. She had argued that by ignoring her discrimination complaint, the company made her work environment hostile.
The court said a lack of response to her complaint would, at best, have maintained the status quo—and not altered her terms and conditions of employment, which is required in order to prove a hostile work environment (Fincher v. Depository Trust and Clearing Corporation, No. 08-5013, 2nd Cir., 2010)
Final note: The court also tossed out Fincher’s underlying discrimination claim because she didn’t have any proof that she had, in fact, been denied training.
Advice: Employers should, of course, provide an equal shot for all employees to receive training, regardless of protected status. Do this by creating a training plan that spells out what type of training is available and what employees need to do to get that training.
The key is to open up training to everyone interested and qualified for specific training opportunities. Not everyone will be interested, but you will be able to show that all eligible employees had a chance to participate.
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