An employee’s casual remark to HR can lay the groundwork for a retaliation claim if the comment could be interpreted as objecting to some form of discrimination. That’s good reason to train HR staff to report all comments and consider them as protected activity—especially ifdecides to discipline the employee.
Before approving discipline—including termination—consider whether the employee might have a retaliation claim based on that informal conversation.
Recent case: Scott worked as director of global finance for an auto parts company that has plants in Mexico and other international locations. During a dinner with other executives on a European trip, Scott brought up a concern he had about another executive’s relationship with a Mexican employee. Scott suggested to a senior manager that perhaps the executive could be persuaded to “soften his style” a little, calling it “unnerving” to Latin American employees.
The response was a tirade. The executive said, “F*** that cultural bull****,” and said the Mexican employee should just “grow up.” He added that the employee was “f*****g worthless.” In addition, he referred several times to black employees as “brothers.”
Since an HR vice president was also on the trip, Scott mentioned the comments during a casual conversation and said he didn’t think they were appropriate. A week later, Scott was fired.
He sued, alleging discrimination and retaliation.
The company argued that Scott couldn’t sue for retaliation since he hadn’t engaged in protected activity by merely mentioning the racially charged comments to an HR VP.
The 6th Circuit Court of Appeals disagreed. It said even a casual comment can be the basis for retaliation and ordered a trial. (Trujillo v. Henniges Auto Sealing, No. 11-1148, 6th Cir., 2012)
- Investigate complaints, pronto
- Be prepared to show business necessity if hiring rule excludes members of protected class
- Back anti-harassment policy with robust training, enforcement
- Craft a 'last-chance pact' with on-the-ropes employees
- When employee is pregnant, insist on HR approval for every job-related move