Good evaluation, raise don’t invalidate retaliation claim

Ever since the U.S. Supreme Court made it easier to charge retaliation for complaining about alleged discrimination, the courts have been flooded with new cases probing the limits of the ruling. The new test is whether an employer’s action would “dissuade a reasonable worker from making or supporting a charge of discrimination.”

If you don’t want to be on the receiving end of one of these lawsuits, you need to make absolutely sure that nothing you do after getting a complaint could be viewed as discouraging employees from complaining. That’s why it’s a good idea to have supervisors and managers show HR any possible adverse employment actions, such as a lower performance evaluation before it’s implemented; even a good evaluation that earns the employee a pay increase should be reported to HR.

Recent case: Jonathan Halfacre complained that his employer, Home Depot, refused to promote him to a management position because he is black. But the retailer argued Halfacre wasn’t promoted because he had a second job as a firefighter, which would interfere with his ability to manage a department.

Soon after his complaint, Home Depot evaluated Halfacre and gave him a lower rating than he had earned the last time. However, the evaluation also came with a pay raise of $.55 per hour. Had he earned his previous rating, he would have received a $.75 to $1 per hour raise. He sued, alleging discrimination and retaliation.

The 6th Circuit Court of Appeals dismissed his original discrimination claim because Home Depot had shown a business-related reason for not promoting him—he couldn’t work a management schedule because of his second job. However, the court sent the retaliation case to trial, reasoning that a lower evaluation shortly after complaining about discrimination might be enough to dissuade an employee from complaining in the first place, even if the evaluation came with a pay increase. (Halfacre v. Home Depot, No. 05-6619, 6th Cir., 2007)