When employees sue your organization, it can be tempting for supervisors to keep a closer eye on those litigious employees to make sure they’re “playing by the rules.”
But be careful: If you suddenly start enforcing your company’s existing rules or turn into Big Brother, you could end up facing a second lawsuit, for retaliation.
Take time to remind supervisors—especially after one of their staffers files an internal complaint or lawsuit—to apply policies and discipline evenhandedly with each employee. This is especially important because last summer the Supreme Court made it easier for employees to file and win retaliation lawsuits.
Recent case: Several police officers filed complaints against the city of Philadelphia alleging reverse race discrimination. Shortly after they filed the complaints, the officers claim, the city mounted a retaliation campaign.
For example, one of the officers was out on extended sick leave. The city had a valid policy of conducting “sick checks” at employees’ homes to make sure they were taking legitimate medical leave. After he filed the discrimination lawsuit, the city’s sick checks to this officer’s home increased from three times in five months to every other day for two months. That proved enough for the court to view the city’s heightened scrutiny as retaliation and an attempt to intimidate others to keep quiet about discrimination. It ordered a jury trial. (Moore, et al., v. City of Philadelphia, No. 03-1465, 3rd Cir., 2006)
Final tip: Encourage supervisors to ask themselves these three questions before applying discipline or increasing scrutiny on an employee:
- Why am I taking this action now? If it smells a bit like retaliation for the complaint, a jury could see it that way, too.
- Would I take this action with my best employee? If not, you could be vulnerable to a retaliation charge.
- Have I checked to see how this rule has been applied to others? Expect trouble if the rule has been enforced in a haphazard manner.
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