Warn bosses: Don’t discuss bias complaints

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in Discrimination and Harassment,Human Resources

When employees face discipline (or fear they might be punished soon), they’ll often file a preemptive EEOC complaint. Then, when discipline comes down, they argue that it was in retaliation for complaining.

To make such a case, an employee must show that the people involved in the discipline knew about the complaint. If they didn’t, there can be no retaliation.

The problem is that anything the employee hears a supervisor say may end up being construed as evidence of retaliation. That’s why supervisors should be trained not to discuss or even mention the complaint while interacting with the employee. Leave that to HR.

Recent case: Jolando, who is black, worked as a Pennsylvania state trooper. When other troopers expressed concerns about his mental state, Jolando’s supervisor transferred him.

He filed an EEOC complaint, alleging race discrimination.

Shortly, Jolando was ordered to turn in his weapon and undergo a psychiatric exam. He asked his supervisor why and alleged the supervisor said it was because of his EEOC complaint. However, the supervisor wasn’t the one who decided to suspend Jolando. According to the state police, the psychiatric exam was already in the works and had nothing to do with the EEOC complaint.

Jolando won a jury award for retaliation, but the police department appealed. It argued there was no evidence that the decision-maker knew about the EEOC complaint.

The 3rd Circuit Court of Appeals disagreed. It said the jury was free to believe that the direct supervisor’s comment was circumstantial evidence that the decision-makers knew about the complaint. From that, the jurors were free to conclude that retaliation was the motive. (Hinton v. Pennsylvania State Police, No. 11-2076, 3rd Cir., 2012)

Final note: Loose lips sink ships. Tell supervisors to refer all questions about discipline to HR—and refrain from offering personal opinions.

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