Think retaliation won’t be a problem because plenty of time has passed since an employee complained about alleged discrimination? Think again!
Always be on the lookout for possible retaliation, no matter how long it has been since the initial complaint. Courts assume that employers are perfectly capable of being patient if they’re intent on punishing employees who file lawsuits or participate in other protected activity.
Recent case: Fred Andes, who is Asian and of Filipino origins, worked as an assistant professor at New Jersey City University. He first complained about national-origin and race discrimination in 2003 when he applied for a position as a dean.
The university told him the position was not going to be filled because of financial constraints. Then someone else got the job. Two years later, Andes applied for a promotion to full professor, but he was rejected.
That’s when he sued, alleging that others who were less qualified and did not belong to his protected class were promoted. This, he claimed, was retaliation.
The trial court dismissed his lawsuit, reasoning that the fact that two years had passed between his first complaint and his missed promotion was enough to reject a connection. Andes appealed.
The 3rd Circuit Court of Appeals reinstated the lawsuit. It said that as long as Andes had some evidence that the real reason he was not promoted was related to his earlier complaint, his case could continue. (Andes v. New Jersey City University, et al., No. 10-2097, 3rd Cir., 2011)
Final note: Stay vigilant to the possibility that retaliation could rear its ugly head. Review every employment decision that might affect someone who has filed previous bias or harassment complaints. Make sure those decisions (discharge, demotion, failure to promote, etc.) are defensible.
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