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Beware! Even small penalty can be retaliation

by on
in Discrimination and Harassment,Employment Law,Human Resources

Employees who complain about discrimination are protected from retaliation—and even a small financial penalty against an employee may be enough to trigger a lawsuit.

Remember: The test for retaliation is whether a hypothetical reasonable employee would be dissuaded from complaining in the first place if he or she knew the consequences.

Recent case: Evelio Cunningham, who is white, worked with Hispanic co-workers. His supervisor was Hispanic. When Cunningham had an argument with a Hispanic co-worker, he got a written reprimand.

He complained to the EEOC, alleging that a Hispanic co-worker got away with just an oral reprimand for threatening another worker with bodily harm. This, he claimed, was race discrimination.

Shortly, Cunningham claimed his supervisor unfairly docked his leave balance for conducting union business, while Hispanic employees weren’t docked for their union activities. He said this was retaliation for his earlier filing of the EEOC complaint, and he added a retaliation charge.

In court, the employer argued that Cunningham had lost only about $80 in pay. It said that wasn’t enough to make a reasonable employee forgo filing an EEOC complaint.

Cunningham countered that he had also suffered anxiety after having his leave docked.

The court concluded that a small loss of pay plus emotional suffering was enough to constitute retaliation.

Fortunately for the employer, the supervisor was able to offer a solid reason for docking Cunningham’s pay. She said that, unlike other employees doing union work, Cunningham’s union activities sometimes interfered with his job. It dismissed his case. (Cunningham v. Geren, No. 09-333, SD TX, 2010)

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