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The Plaintiff Whisperer: Now You Must Listen to What Employees are NOT Saying

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in Case In Point

You know the old expression, “Say what you mean and mean what you say.” That’s a good guiding principle to create clear communication between people. Well, one court recently scratched that slogan altogether when it ruled that an employee doesn’t have to directly complain about race discrimination in order to hold an employer liable for it. How can that be? Read on …

Case in Point: Tony Reaves, a Pennsylvania state trooper, was the only black trooper assigned to his station. During his initial probationary period, he made several verbal complaints to the department’s equal employment opportunity office, complaining that he was being treated “differently.”

Reaves never stated he was being treated differently because of his “race.” Reaves even sent a letter outlining his differential treatment and never mentioned “race” as the issue.

Eventually Reaves was terminated based on some alleged negative actions, including passing a state police car on the right while driving his personal vehicle and being named as a suspect in the theft of a motorcycle ramp.

Reaves sued for race discrimination under the Civil Rights Act of 1964, saying the termination was racially motivated. He also sued for retaliation, claiming that he was fired soon after filing his racial bias complaint.

The sheriff’s department pushed back, asserting that Reaves never stated a “race” compliant because he left out the most critical word of all … “race.” Employers are not mind readers. Say what you mean and mean what you say.

What Happened Next?

The court sided with Reaves and sent the case to a jury. It concluded that since the employer knew Reaves was the only black trooper in the location, his complaint met the requirement that it had either “explicitly or implicitly alleged” that the unfair treatment stemmed from his membership in a protected class. The employer was responsible for connecting the dots, the court said. (Reaves v. Pennsylvania State PoliceM.D. Pa., 10/17/12)

3 Lessons Learned … Without Going to Court

  1. A claim is a claim is a claim. Once you hear an employee claim “discrimination” act on it, regardless of whether they say what kind it is. Take prompt effective action to stop it. Investigate and discipline those that are engaging in it. We just learned that an employee does not have to use magic words like “race” or “age” or “sex” discrimination—you will be responsible for figuring it out.
  2. Don’t discipline employees that make discrimination claims. Timing is everything. By now you should know to never terminate any employee who has filed any type of discrimination or retaliation claims unless, of course, it involves workplace safety issues like violence.
  3. Probationary periods are merely an illusion. Don’t think that it is safe to terminate an employee just because they are in a “probationary period.” Terminated employees still keep their legal rights to sue you.

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