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Employee ‘had a hunch’ about bias? That’s not enough to support retaliation suit

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in Discrimination and Harassment,Human Resources

Employees who experience retaliation for complaining about discrimination don’t have to prove bias to win a retaliation lawsuit. But that doesn’t mean that a mere suspicion or hunch that an employer is discriminating is enough.

If the underlying complaint isn’t objectively reasonable, it can’t form the basis for a lawsuit alleging retaliation for reporting discrimination.

Recent case: Valerie Diamond worked as a paralegal for a law firm. Diamond, who is black, complained to management that white paralegals were getting better work assignments and more billable hours.

She was terminated, and concluded the reason was her complaint. That launched a retaliation lawsuit based on having engaged in a protected activity—reporting her suspicion about racially motivated work assignments.

The case was dismissed after Diamond couldn’t give an example of allegedly more desirable work given to white paralegals. Apparently her complaint was based on her hunch or mere suspicion, not observed facts. She therefore didn’t have an objectively reasonable basis for her complaint. (Diamond v. Morris, Manning & Martin, No. 11-11918, 11th Cir., 2012)

Final note: The court may be reacting to the increase in retaliation claims across the country and looking for a way to cut down on such claims. If more cases are dismissed, fewer employees may try to complain about alleged discrimination as a way to set up a retaliation lawsuit.

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