Among the many hassles of being sued is the simple fact that once a lawsuit is filed, it’s hard to stop. It can take years, costing employers tens (or hundreds) of thousands of dollars and countless staff hours before it is finally dismissed.
And if a discrimination case, for example, ends up before a jury, all bets on the outcome are off.
That’s why employers are far better off making sure no employee ever finds grounds to bring a lawsuit in the first place.
While you can’t prevent every possible discrimination complaint, you do have control over cases charging retaliation. In fact, such cases are relatively easy to prevent—if HR gets proactive as soon as it has any inkling that an employee feels discriminated against and complains.
Here’s how: Start by immediately investigating the complaint and instructing everyone involved at every level that there must be no retaliation. Then explain that retaliation means anything that might dissuade a reasonable employee from complaining in the first place.
Since no one can predict what a judge or jury will think is retaliation, make sure managers and supervisors understand that there should be absolutely no changes in working conditions unless HR approves the changes before they are implemented.
Recent case: Regina Lee worked for the city of Corpus Christi’s waterdepartment in various management positions. She was the only black manager in the department and was also the lowest-paid manager. Other managers who had been hired around the time she was made thousands more.
The pay disparity did not disappear with time, even as Lee received salary increases. Lee tried several times to have her position evaluated for appropriate pay adjustments, without success.
She finally complained to HR, alleging racial discrimination. Then, when her salary was still not adjusted, she filed an EEOC complaint.
After she began the complaint process, Lee said co-workers began ignoring her. She said she heard rumors that they had been told to stay away from her. Plus, suddenly her supervisor told her she shouldn’t attend management meetings, thus excluding her from information-sharing events.
She also claimed that when she provided management with her username and password so they could evaluate her work over the years (presumably to see whether Lee was indeed entitled to higher pay), somehow her hard drive was erased. That wiped out years of Lee’s work.
The court ordered a trial on Lee’s retaliation complaint, noting that a reasonable employee might very well think twice before complaining if she knew she would be excluded from important meetings and perhaps lose her accumulated work product. Lee will also get a chance to prove that her pay was lower because she is black. (Lee v. City of Corpus Christi, No. 09-190, SD TX, 2010)
Final note: Anything that doesn’t pass the smell test may mean a retaliation trial. Minor slights (like co-workers avoiding an employee whom they perceive as a trouble-maker) might be overlooked. But when the slights begin to affect an employee’s ability to do the job, chances are the retaliation claim will go to trial.
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