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When employee complains about bias, take control ASAP to prevent retaliation

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in Discrimination and Harassment,Firing,Human Resources

When an employee complains about perceived discrimination, how you treat the worker can greatly affect the outcome if the case reaches court.

The best approach: Handle the case professionally, at the HR function level.

The worst approach:  Let the em­­ployee’s supervisor deal with the problem locally.

Simply put, even if it turns out that the employee’s underlying discrimination complaint wasn’t valid, she could still win a retaliation lawsuit if she was treated badly after complaining. Remember, retaliation is anything that might dissuade a reasonable employee from complaining in the first place.

Recent case: Pamela Quintero began having epileptic seizures when she was 9 years old. As an adult, doctors discovered Quintero had a brain tumor and suggested removing it to stop or reduce the seizures. She had surgery and began taking medication that helped prevent seizures.

She went to work for the Rite Aid drug store chain, but never revealed her medical past. However, on her first day, Quintero’s father pulled the manager aside to tell him that she had epilepsy, just had brain surgery and suffered from learning disabilities. He asked the manager to call if his daughter had a seizure at work.

Almost immediately, Quintero began complaining about the way the manager and other employees treated her. She said they yelled at her and gave her the least desirable tasks. Finally, she told the manager he was discriminating against her because of her disabilities.

The manager allegedly responded by mocking her and telling her that she didn’t have any documented ­disabilities. He also asked her, “Who are you planning to call, George Bush?”

According to Quintero, shortly afterward the manager cut her hours. He then met with Quintero and told her to sign a disciplinary notice informing her that her behavior was unacceptable. She refused to sign and was fired.

Quintero sued, alleging disability discrimination and retaliation.

Rite Aid argued Quintero wasn’t disabled since she had no seizures while working for the company. Plus, it said she presented no proof she had learning disabilities.

The court agreed Quintero wasn’t disabled. While she had a medical condition and maybe had learning disabilities, there was no evidence either condition substantially impaired a major life function. Employees have to show their condition makes it substantially harder to do things like breathe, walk, talk or learn than the average individual.

But the court said Quintero’s retaliation case could go forward. It reasoned that she complained about disability discrimination in good faith and that she lost her job shortly after. If she can convince a jury she was terminated because she complained, she can win the case. (Quintero v. Rite Aid of New York, No. 09-Civ-6084, SD NY, 2011)

Final note: Make it clear that supervisors must report every discrimination complaint to HR—even if they think the complaint is bogus. Include mandatory complaint reporting as a perform­­ance standard for all supervisory personnel.

It’s the only sure way to convince managers and supervisors to take all complaints seriously, and to take appropriately action when an employee files a complaint.

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