Retaliation for complaining about alleged discrimination is illegal—and the standard for proving retaliation is very low. It only requires a worker to show that a reasonable employee would have been dissuaded from complaining about discrimination in the first place if she knew beforehand how her employer would react.
Classic examples of retaliation are termination, suspension or transfer to a less desirable position.
But courts—which have been slammed with retaliation lawsuits—have begun narrowing what they consider retaliation. For example, the 7th Circuit has ruled that merely scrutinizing someone’s work more closely after a complaint isn’t retaliation.
Recent case: Bernice worked for the U.S. Department of Health and Human Services. Like other employees, she used a swipe card to record her entry and exit from the workplace. Her supervisor told her that records showed she had left work more than 40 minutes early 18 times and arrived more than 10 minutes late on 17 other occasions.
Bernice said the records were wrong, but she was suspended anyway. Bernice filed an EEO complaint. Unrelated to the suspension, she accepted a new position with a different supervisor. He, too, suspended her for arriving late and leaving early, so she filed another EEO complaint.
When the new boss criticized her work and said she might be placed on an improvement plan, she sued for retaliation.
The 7th Circuit Court of Appeals concluded that a reasonable employee would not have been dissuaded from filing an internal complaint for fear her work would be scrutinized after doing so. It dismissed Bernice’s case. (Smith v. Sebelius, No. 11-3335, 7th Cir., 2012)
Final note: The court also noted that Bernice didn’t have anything to substantiate her claim that her suspensions were discriminatory. She never identified anyone else who was absent so frequently who wasn’t punished.
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