Judges understand that human emotion plays a part in some personnel actions—especially in cases involving alleged retaliation. They know that if an employer was planning to retaliate for something an employee did, it wouldn’t wait several years to act.
What’s more likely is a slow and steady escalation of criticism, possibly designed to make the employee quit and move on.
Smart employers make sure that never happens. They follow up on employee complaints and document their efforts to treat the complainer fairly.
Recent case: Henry Taylor, who is black, has a university job focused on recruiting a diverse student population. He sued in 2004, alleging pay discrimination. The case was settled and the university assured Taylor he would be considered for appropriate promotions.
In 2006, Taylor applied for a newly created position managing minority recruitment. He was interviewed but the university ultimately hired a black woman, based in part on her interview.
None of the selection committee members had been involved in Taylor’s earlier lawsuit and all ranked Taylor lower than other candidates, in part because his past efforts to recruiting minority students had not been as successful as the university expected.
Taylor sued, alleging retaliation.
But he couldn’t point to any other incidents that smacked of retaliation. Nor could he counter the university’s claims that the successful candidate was better qualified for the job. (Taylor v. University of Arkansas, No. 10-1251, 8th Cir., 2011)