Here’s some good news: An employee’s interpretation of a manager’s facial expressions isn’t enough for a successful lawsuit. A smirk isn’t evidence.
Recent case: Kaye had a history of lengthy absences due to injuries and accidents. For example, she was off for an extended time period after being bitten by a venomous spider. Then she slipped on a pencil and filed a workers’ compensation claim.
Sometime later, she was called to a meeting to discuss the injury and the medical reports her doctor had submitted. The reports included references to prescription drugs Kaye used that were unrelated to her injury. At the meeting, a manager, who held in his lap a file folder containing her medical information, explained that the employer had inadvertently received the additional medical records. Kaye was told those records would be destroyed.
Kaye thought she saw other participants “smirk” during the meeting. She sued, alleging among other things that the facial expressions she took for smirks must be evidence of discrimination.
The court didn’t buy it and threw out Kaye’s lawsuit. (Hancock v. County of Plumas, No. C01084, Court of Appeal of California, 3rd Appellate District, 2013)
Final note: The unfortunate reality is that, even if you do everything right, you can’t guarantee you won’t be sued. But you can get such cases tossed out quickly. You can also sometimes get the court to order the employee to pay your litigation costs—as happened in this case.
- Always investigate discrimination complaints to ferret out boss bias, prevent retaliation
- Examine your promotion policy for reverse discrimination
- New Jersey Law Against Discrimination
- Use moonlighting, confidentiality policies to discourage outside work
- When it comes to discrimination, retaliation is still the No. 1 risk