Prevent retaliation claims by maintaining confidentiality of bias, harassment complaints

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in Discrimination and Harassment,Human Resources

Employees often believe they can ­allege retaliation anytime they complain about some form of discrimination at work. But that’s not true. To make a successful claim, they have to show that the retaliation was just that—punishment for making a complaint.

And it’s tough to pin retaliation on a supervisor who never knew about the original complaint.

That’s why it makes sense to limit access to information about employee complaints. For example, there’s no need to share an employee’s discrimination complaint with her supervisor if it doesn’t involve that supervisor or department.

Recent case: When state government employee Emily Wilson was re­­assigned from one facility to another, she refused to report to the new loca­tion. She was fired a month later. Then she sued, alleging she was really being punished for cooperating in another employee’s discrimination lawsuit.

But the state was able to show that the committee that made the reassignment decision had no knowledge of her earlier cooperation. Thus, it could not have used the reassignment as an excuse to punish her for participating in litigation. (Wilson v. Secretary of Agriculture, No. 10-3377, 3rd Cir., 2011)

Final note: There’s much to be said for providing a fresh start for any employee who complains about discrimination. Presumably, a new supervisor who knows nothing about earlier problems won’t be prone to retaliation. Make sure the employee agrees to the transfer as part of the underlying settlement.

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