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When employee complains of bias or harassment, beware acting in ways that look like retaliation

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

An employee who files an EEOC or internal complaint about alleged discrimination or harassment might quite naturally be nervous that her action will result in adverse consequences.

If she has already retained an attorney, she probably also knows that any adverse action taken against her may be illegal retaliation. Her lawyer has undoubtedly told her to track everything that happens to her.

That’s why employers have to be certain that any discipline, demotion or changes in working conditions can be justified for valid business reasons before they are implemented.

That job typically falls on the HR professional. If you find yourself with such a situation on your hands, act with caution.

Remember, retaliation is just about anything that would dissuade a “reasonable” employee from complaining in the first place. You don’t have to worry much about minor slights or workplace changes. However, anything that has financial consequences, creates great inconvenience or causes a loss of prestige may be the basis for a successful retaliation lawsuit.

Advice: Avoid adverse actions (termination, suspension, demotion, etc.) against employees who have complained about discrimination or harassment unless it is absolutely clear that you would have taken that same action even if no complaint had been filed.

Recent case: Stormy Magiera was an officer in the Dallas Police Department. One night, she was the first officer on the scene at a nightclub shooting. Shortly after arriving, another officer showed up. As he tried to restore order, he touched Magiera on the arm and called her “darling.” She told him to stop, and then she filed an internal complaint alleging sexual harassment.

Shortly after, Magiera was removed from the list of officers eligible to conduct field training. She sued, saying that was retaliation for complaining about sexual harassment. As a result of being removed from the list, she lost compensation she otherwise would have received. Plus, the job was perceived as prestigious.

The police department said it removed her because it had learned she suffered from seizures and believed she didn’t have the temperament to be a field training officer. The only problem with that argument was that police officials knew about her seizures and temperament before she filed the internal complaint, yet they didn’t remove her from the training list until after she had filed her complaint.

The court said the timing was suspect and the action could have dissuaded a reasonable employee from complaining. Now the case will proceed. (Magiera v. City of Dallas, No. 09-10826, 5th Cir., 2010)

Final notes: Magiera’s original complaint probably wouldn’t have gone anywhere. Isolated comments like the one the other officer made aren’t generally considered to be sexual harassment. Employers that try to keep such comments from escalating generally aren’t liable for co-worker harassment. The best approach would have been to investigate her complaint and then tell the officer to stop such comments.

The police department should have warned Magiera’s supervisors not to retaliate. It also should have followed up to make sure Magiera didn’t believe she had been punished for reporting the conduct.

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