To prove retaliation claims in court, employees must be able to show they suffered negative employment action in response to their lawsuit, such as termination, lowering of pay, denying a promotion or being moved to a worse shift. Acts that are merely annoying to the employee won't rise to the level of "retaliation."
But, as a new ruling shows, simple annoyances to one person could amount to actionable retaliation for another; you must look at the individual case. Even if the average employee wouldn't consider something a negative employment action, it could reach that level for a particularly vulnerable employee.
Bottom line: Here's more reason to remind supervisors to take a completely "hands off" approach to employees who file a workplace complaint. Resist the temptation to strike back in any way.
Recent case: Executive secretary Chrissie Washington worked for the Illinois government on a 7 a.m. to 3 p.m. shift to allow her to meet her disabled son at the school bus. But soon after she filed a race-discrimination complaint, Washington's boss rescinded that flexible schedule, making her work the same 9-to-5 schedule as other employees.
She sued for retaliation, claiming the schedule change was an adverse-employment action intended to punish her for her lawsuit. The 7th Circuit agreed, saying the 9-to-5 schedule switch "was a materially adverse change for her, even though it would not have been for 99 percent of the staff." (Washington v. Illinois Department of Revenue, No. 03-3818, 7th Cir., 2005)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Basic training: Protect service members' re-employment rights
- Court points way toward tracking employees with GPS
- Watch out! EEOC complaint can mushroom into class action
- The 6 kinds of terminations ... and how to avoid lawsuits for each one