After an employee files an EEOC or internal discrimination complaint, it’s natural for him to worry about retaliation. Every move by a supervisor or HR will be filtered through that lens.
You need to be on guard against retaliation, too. However, you mustn’t hesitate to enforce the rules you expect all your employees to follow just because you’re afraid one of them will cry “retaliation.”
Recent case: Anthony Ramirez worked for the University of California as a research database manager. He has a sight impairment that gives him no peripheral vision. About a year and a half after starting the job, Ramirez was demoted because of what his supervisor said was his inability to perform the job. This meant he had to work for a new supervisor.
Ramirez filed an internal complaint and followed up with an EEOC complaint, alleging that he was being discriminated against on account of disability and national origin.
Ramirez did not get along with the new supervisor. Almost immediately, she began criticizing his attendance. Ramirez also took to sending emails to the supervisor, criticizing her work and her criticism of his work. Following an initial meeting to discuss those issues, Ramirez took a week of medical leave because he felt ill.
When Ramirez returned, he got a memo telling him that he needed to accept his new situation and supervisor. In addition, he was informed that he would have to provide a doctor’s note for absences over one day, per university policy for employees with attendance problems.
He responded with an email that told his supervisor he believed the request was “nonsense” and that he would “not comply.”
Things didn’t get better. When his supervisor asked for clarification on a project, Ramirez responded with a rambling email questioning his supervisor’s ability. Ramirez was terminated for insubordination.
He sued, alleging discrimination and retaliation for filing his original complaints.
The university argued it fired him for perfectly legitimate reasons: insubordination, rudeness and disrespect for his supervisors.
The court concluded the university had merely applied the same rules to Ramirez that it applied to other employees. There was no evidence anyone singled out Ramirez for extra scrutiny as retaliation. The case was dismissed. (Ramirez v. Regents of the University of California, No. B232573, Court of Appeal of California, 2nd Appellate District, 2012)
Final note: The university did many things right in this case. For one thing, the same manager who hired Ramirez also made the final termination decision. When the same actor hires an applicant, knowing full well that the applicant belongs to a protected class, chances are he would not then fire the same individual for discriminatory reasons.
The university showed the court it patiently dealt with an increasingly tense situation. As Ramirez became angrier, supervisors remained calm and reasonable. That spoke volumes about who was at fault.
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