An employee must levy very specific allegations for a bias complaint to become protected activity—unless HR already suspects discrimination.
Recent case: Victoria’s Secret employee Fredda got rave reviews until she tookto give birth. She complained to HR about her boss’s sudden aloofness and poor treatment. Before she did, however, her boss spoke with the same HR professional, complaining that Fredda was unreliable and “hormonal.”
When Fredda lost her job in a downsizing, she sued for retaliation.
Victoria’s Secret argued she never complained about discrimination, just about poor treatment in general. The court said she still engaged in protected activity because HR already knew that her pregnancy might have caused her boss’s changed attitude. (Malena v. Victoria’s Secret, No. 09-CIV-5849, SD NY, 2012)
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- When employee has pregnancy complications, be prepared to consider ADA accommodations