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Bias complaint? Beware retaliation claim, too

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in Discrimination and Harassment,Human Resources

Here’s an important reminder for employers when an employee alleges discrimination. Regardless of the merit of the original claim, remind supervisors they can’t retaliate.

Complaining is so-called protected activity; punishing an employee for that protected activity is illegal retaliation. It doesn’t matter whether the original complaint pans out.

Recent case: William worked for a union, attempting to organize Texas employees of the Transportation Security Administration. William is white. The woman who supervised him at the time is not.

William complained to other supervisors, as well as HR, that his supervisor made racial slurs that ought to be offensive to blacks. He said she called him a “young white boy” who got the job because of his race. She also allegedly told him that she got her job by performing a sex act.

The union response was to tell William he had to get along with his supervisor and get used to her name-calling because that’s the way things worked.

Shortly afterward, he got into a shouting match with the supervisor. He was fired almost immediately because she told HR that she felt physically threatened.

William sued, alleging a hostile work environment, race discrimination and retaliation.

The court made quick work of the first two claims. It explained that the comments, though perhaps offensive, weren’t pervasive, frequent or severe enough to break the law.

However, the court said Will­iam’s retaliation case could go to trial. It noted that he had been praised for good work and that the timing was highly suspect. (Cuth­­bert­­son v. American Fed­­er­­a­­tion of Government Em­­ployees, No. 3:10-CV-2107, ND TX, 2012)

Final note: The union will have to show the jury either that William didn’t do a good job or that he really made a threat.

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