Here’s something to warn supervisors about after an employee has filed a discrimination or harassment complaint: Even if the initial complaint proves unfounded or too minor to be illegal, any punishment the complaining employee experiences later may amount to retaliation. It doesn’t matter whether the punishment is related to her original complaint.
Retaliation is anything negative that would dissuade a reasonable employee from complaining in the first place. It can be anything from an inconvenient shift schedule to a negativeto a campaign to make life miserable for the employee.
Recent case: Lori filed an internal sexual harassment complaint alleging that her supervisor had referred to his sister-in-law as a “whore” and that Lori “had been with a lot of men.” Lori concluded that the two statements added up to her supervisor calling Lori a whore, too.
HR took her complaint and spoke with the supervisor, but concluded that the comments weren’t enough to create a sexually hostile work environment.
After HR declined to discipline her supervisor, Lori claimed that he found subtle ways to punish her. For example, he made negative comments on her next.
Meanwhile, Lori began having problems with two co-workers, who allegedly followed her into the locker room, removed her car keys from her coat so she couldn’t drive home and otherwise made her work life difficult. Lori believed the co-workers were bullying her at her supervisor’s request.
She complained about their behavior to HR, alleging she was being harassed as punishment. But HR chalked it up to a personality conflict and didn’t do anything to the women, other than eventually transferring them to a different schedule so they wouldn’t interact so much with Lori.
She sued anyway, alleging sexual harassment and retaliation.
The judge threw out the harassment claim, reasoning that a one-time comment wasn’t enough to create a hostile work environment. However, the court let Lori’s retaliation claim go to trial, despite the employer’s argument that none of the alleged retaliation was related to her sex. That didn’t matter.
What did matter was whether a reasonable employee would have been dissuaded from complaining in the first place if she knew her performance review might suffer and that co-workers might bully her. (Hallman v. PPL, No. 11-CV-02834, ED PA, 2013)
Final note: What could HR have done better in this case? Three things:
- First, it should have made it clear to the supervisor that his comment was unacceptable and that he must not punish Lori for complaining.
- Next, HR should have insisted on seeing any subsequent performance review before Lori saw it. That way, it could make sure that any criticism was valid and not punishment for her complaints. Any change from earlier evaluations would be suspicious—especially since Lori had worked for the company for many years.
- Finally, HR should have worried that Lori’s complaints against her co-workers might be connected to her complaint and immediately separated the co-workers from Lori. While their conduct might have been coincidental, it still wasn’t appropriate in the workplace.
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