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It happens: A supervisor wants to discipline an employee, but HR or upper management nixes the idea because it knows something the boss doesn’t. Perhaps the employee had suffered discrimination in the past and was placed in a new position for a fresh start.

Be prepared for legal fallout if you wind up disciplining the supervisor.

Recent case: Elen Bahr, a supervisor at the Minneapolis-based online Capella University, had a black subordinate she believed was not performing well. Several times, Bahr asked for permission to place the subordinate on a performance improvement plan. HR denied her request, hinting that it feared the woman might sue for race discrimination.

When Bahr was fired for alleged problems in her department, she sued for retaliation. She charged that she had lost her job for opposing what she considered reverse discrimination that favored black employees over white ones. The core of her argument: The university treated the subordinate differently because of her race.

Bahr’s case made it all the way to the Minnesota Supreme Court. There, a majority concluded that Bahr hadn’t engaged in protected activity when she made her claim. It said no reasonable person could believe that refraining from punishing an employee was discrimination.

On the other hand, dissenting judges concluded that Bahr had a case, since arguably favoring the subordinate and disciplining other employees who were not black discriminated against those employees.

For now, the law is that Bahr’s actions were not protected. Her lawsuit was dismissed. (Bahr v. Capella University, No. A08-1367, Supreme Court of Minnesota, 2010)

Final note: Before acting against a supervisor in a situation like this one, imagine the legal costs of defending a lawsuit all the way to the state Supreme Court.

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