Employees who complain about alleged discrimination are protected from retaliation.
Some employers try to avoid the impression of retaliation by making sure that whoever makes disciplinary decisions doesn’t know about any discrimination complaints. That way, they can argue that if the decision-maker wasn’t privy to the complaint, he couldn’t be retaliating.
It isn’t quite that simple.
If someone else in the organization does know about the bias complaint and has any influence over the disciplinary decision, the employee may have a retaliation case.
Recent case: Howard Henry, who is black, sued Wyeth Pharmaceuticals because he believed he had been passed over for promotions because of his race. He also charged retaliation, complaining that he was transferred during a reorganization, placed on an improvement plan and got poor reviews as payback for asserting his rights to promotion.
Wyeth argued that his direct supervisors made the decisions about the reorg, the performance improvement plan and the. Since they didn’t know about those complaints, they couldn’t have retaliated. A jury ruled against Henry.
An appeals court said the jury should have been asked to decide whether someone higher up in the company knew about the complaints and thus influenced a subordinate to punish Henry. Now he’ll get a new trial. (Henry v. Wyeth Pharmaceuticals, No. 08-1477, 2nd Cir., 2010)
Final note: In this case, the court said Henry had no evidence that Wyeth actually discriminated against him in promotions. It was satisfied that it merely selected the best-qualified employees. But that didn’t mean Henry didn’t have a retaliation claim. He didn’t have to be right about the discrimination. He just has to show that he was punished for making the allegation.
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