When litigious employee continues to threaten retaliation suit

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

Q. An employee filed a sexual-harassment claim with the Ohio Civil Rights Commission against my company. The commission investigated the charge and found it to be without merit. She still works for us and is continually threatening to file a retaliation claim. Can she?

A. Before the U.S. Supreme Court decided White v. Burlington Industries in June 2006, the 6th Circuit Court of Appeals, which governs Ohio, held that only those job actions that affected the terms and conditions of employment were retaliation. Employees claiming retaliation were required to show an adverse employment action, defined as a materially adverse change in the terms and conditions of employment.

The White court greatly expanded the definition of retaliation. According to White, the anti-retaliation provisions of Title VII forbid all employer actions that would be materially adverse to a reasonable employee or job applicant, if they were harmful to the point they could dissuade a reasonable worker from making or supporting a charge of discrimination.

For example, the change in working hours of a single mother, without any change in job duties or pay, could constitute retaliation if it made it more difficult for her to arrange child care.

Under the White definition of retaliation, employers must be especially careful to educate their supervisors to consult with HR before taking any employment action against an employee who has engaged in activity that is protected under Title VII. Under these circumstances, it is important to treat the complaining employee the same as all other similarly situated employees—no better, and no worse.

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