Some employees believe that anything the least bit negative that happens to them after they file a lawsuit is grounds for a second lawsuit alleging retaliation. That’s not true.
To constitute retaliation, an employer has to do something that would dissuade a reasonable employee from filing a lawsuit in the first place.
Recent case: Wilma Gibbs-Matthews sued the school district where she worked for alleged discrimination—and then added a retaliation claim to her case after she didn’t get a promotion.
The district argued that Gibbs-Matthews never applied for the promotion; therefore it couldn’t have retaliated against her.
Gibbs-Matthews countered that she never applied because she considered the notion that she would have to apply “insulting.” Apparently, her employer was supposed to see her talents and promote her automatically.
The 11th Circuit Court of Appeals dismissed her retaliation claims. It said that a reasonable employee would not have been dissuaded from filing a lawsuit if she learned that a possible consequence would be to have to apply for a promotion. (Gibbs-Matthews v. Fulton County School District, No. 10-14296, 11th Cir., 2011)
Final note: When an employee complains about discrimination, check back with her early and often to ensure she’s not experiencing retaliation. By asking if there have been any problems, you could derail a subsequent retaliation lawsuit. When judges hear that employers have been proactive, they often throw out such cases fast.
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