Employees who complain about discrimination sometimes think that makes them immune from discipline. They may have heard that employers can’t retaliate against employees who complain. That’s true, but only to a point.
Retaliation is anything that would dissuade a reasonable employee from complaining in the first place.
But employers aren’t powerless against employees who have complained. They just have to be smart when imposing discipline.
The best approach: Make sure the managers who decide on discipline don’t know about the prior complaint. That way, the employee can’t show a connection between her complaint and the discipline. After all, managers can’t retaliate for something they don’t know about.
Recent case: Alice Cox worked as a secretary for a sheriff’s department before being transferred to a job at the local prison. Unhappy, she filed an age discrimination complaint.
Then Cox filed a written complaint alleging she had witnessed a guard strike a prisoner. The sheriff’s office investigated her allegations and concluded they were false. Cox was called before a supervisory board for potential discipline. The board, which knew nothing about her age discrimination complaint, concluded Cox had made a false report and recommended termination.
After she was fired, Cox added retaliation to her age discrimination lawsuit. She alleged she had been punished not for making a false report, but for complaining about age discrimination.
The court didn’t buy it, noting that no one who was involved in the false-report case knew anything about her age discrimination complaint. It tossed out her case. (Cox v. DeSoto County, No. 10-60405, 5th Cir., 2011)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- When employee complains about bias, take control ASAP to prevent retaliation
- Crack down on association discrimination—especially if there are threats of violence
- Know GINA rules on liability, EEOC prerequisites
- Focus on facts when promoting; avoid subjective 'Better qualified' justification