Ordinarily, when an employee receives a reprimand that doesn’t carry negative consequences, such as a pay cut or transfer, courts won’t consider the reprimand an “adverse employment decision.” As a practical matter, that means an employee can’t base a discrimination lawsuit on a simple reprimand.
But that doesn’t mean an oral reprimand can’t be retaliation. Why? A reasonable employee might be dissuaded from complaining about alleged discrimination if he knew he would earn an unwarranted oral reprimand as a result.
Recent case: Derrick Boone, who is black, worked as a member of the St. Paul Police Department Gang Unit. During his off hours, Boone also worked at the Dorothy Day Center, a homeless shelter.
A shelter resident told a counselor that Boone sent inappropriate text messages to her, gave her a ride in his police car, gave her gifts and had sex with her in the police car. When Boone learned of the allegations, he informed the police department.
The department assigned Boone to desk duty while it investigated the charges. Boone then wrote a letter to higher-ups complaining about his treatment and claiming the department would have treated him differently if he weren’t black.
The police department issued Boone an oral reprimand after reviewing the letter and concluding that his complaints were unfounded.
Meanwhile, the department continued its investigation of the shelter incident. It learned that the front seats of the car Boone had been assigned were wet and smelled of disinfectant. It also reviewed 12 texts Boone and the woman had exchanged. By a narrow margin, the committee considering whether Boone had broken any department rules concluded that there was not enough evidence to warrant punishment.
Boone sued anyway, charging that the oral reprimand was retaliation for complaining about racial bias.
The court agreed in theory. It said that formal discipline—even at the lowest level—might dissuade a reasonable employee from complaining in the first place. (Boone v. City of St. Paul, et al., No. 09-1920, DC MN, 2011)
Final note: The court dismissed Boone’s case anyway, noting the police department had a legitimate reason for reprimanding him: Boone had made false allegations of racial bias.
- How to win discrimination lawsuits: Carefully document real performance problems
- No need to establish absolute proof before terminating alleged harasser
- Don't let managers fly solo on terminations
- Last-chance isn't 'license to discriminate'
- Watch out for overt harassment, but don't sweat isolated--possibly misinterpreted--comments