It’s protected activity if a manager reports to HR that another manager has been treating subordinates who belong to a protected class more harshly than other subordinates.
Punishing the reporting manager for doing so could be retaliation.
Recent case: Joseph O’Leary took a job as vice president at Accretive Health. Soon, O’Leary started keeping a close eye on one of the managers who worked for him when he learned that she had bragged about her sexual exploits at a company dinner. He thought her behavior might constitute sexual harassment, although none of the other diners appeared offended.
The woman was generally known as a bully. But O’Leary began to notice that, while she tended to treat everyone brusquely, she treated black subordinates the worst. He reported to HR and other executives his suspicions that she discriminated on the basis of race and was a sexual harasser.
Shortly after, O’Leary was fired for. He sued, alleging retaliation for reporting sexual and racial harassment.
The court said O’Leary hadn’t engaged in protected activity when he reported the alleged sexual harassment because no reasonable employee would think the dinner talk was sexual harassment. However, the court said he had engaged in protected activity when he reported the disparate treatment black employees received from their supervisor. (O’Leary v. Accretive Health, No. 10-1418, 7th Cir., 2011)
Final note: Accretive Health won anyway because it fired O’Leary for poor performance, not his protected activity.
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