The decks are stacked against employees who claim retaliation when there is no direct evidence of discrimination—if employers keep complete written records of their disciplinary actions.
Those cases often hinge on allegations the employer trumped up disciplinary charges to cover up retaliation. That can be difficult for an employee to prove if there is a solid paper trail documenting the employee’s infractions and the resulting discipline.
Note: As the following case shows, the employer can even be wrong about the circumstances of the alleged infraction. Having complete records of the disciplinary process will carry the day.
Recent case: Lee Campbell, a reference librarian, took a few weeks of to care for her sick mother. When she returned to work, the library accused her of refusing to ask a standard set of questions during a job interview she was conducting. The library put Campbell on probation and eventually fired her for and insubordination stemming from the job interview.
Campbell sued, alleging the firing was retaliation for taking leave. In court, Campbell could show the library was wrong—she had in fact asked the questions. But the library had good written records showing it really believed Campbell refused to follow directions during the interview. That was good enough for the court. Without the records, the library’s reasoning might have sounded suspicious and more like a convenient excuse for retaliation. (Campbell v. Washington County Public Library, No. 06-4414, 6th Cir., 2007)
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