New risk: Workers can claim retaliation even if there’s no adverse job action — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

New risk: Workers can claim retaliation even if there’s no adverse job action

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in Discrimination and Harassment,Employment Law,Firing,FMLA Guidelines,Human Resources

Judy Morris' supervisor at the county road department first evaluated Morris' job performance as "excellent." Later, he rated her as "very good." The supervisor said that he would restore the excellent rating if Morris would have sex with him. She refused and reported him to a county executive.

After the county executive warned him about his behavior, the supervisor's conduct toward Morris deteriorated until he was ordered to move his office to another location. But he continued to harass Morris by visiting her office, calling her, following her home and throwing roofing nails on her driveway.

Morris suffered anxiety attacks, was unable to work and went on sick leave. She sued her supervisor, the county and the county executive under Title VII, charging unlawful employment discrimination by reason of sexual harassment and retaliation. (Morris v. Oldham County Fiscal Court, No. 98-6117, 6th Cir., 2000)

Until now, the standard of proof in retaliation cases has required an adverse job action such as demotion or firing. But here, the court ruled that severe or pervasive harassment by a supervisor can be considered illegal retaliation under Title VII. The retaliatory harassment, the court noted, was more than simple teasing and offhand comments.

Advice: This case gives employees more ground on which to sue under Title VII. It's no longer enough to ensure that employees who take action protected under Title VII (such as lodging a complaint against a supervisor) do not suffer adverse employment actions that can be connected to the Title VII action. You also must now be on the lookout for any harassment that could be seen as "severe or pervasive." Make clear to all employees that no retaliatory actions of any kind will be tolerated, and enforce the rules through aggressive investigation.

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