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Retaliation alert: Don’t punish boss for refusing to alter disputed performance review

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in Discrimination and Harassment,Human Resources

Here’s an important reminder for senior executives: If an employee says she will sue for discrimination unless her evaluation is changed, don’t punish her supervisor if he refuses to go along. That could amount to retaliation for protected activity—meaning you could have two lawsuits on your hands.

Recent case: Blaine worked as a supervisor in the K-9 Unit at the Los Angeles International Airport. He was an expert in bomb detection, recognized nationally for his training programs. When he took the job, he was told to improve morale by encouraging cooperation between his staff and other airport officers. He began conducting joint training and other team-building efforts.

One of his subordinates, a female officer, refused to cooperate. Other supervisors described her as “toxic to morale.” When Blaine prepared her performance review, he gave her excellent ratings except for morale-building and physical fitness.

She went over his head, threatening to sue for sex discrimination unless her evaluation was changed.

Blaine refused to amend the appraisal, telling his bosses it was accurate and true. He was stripped of his duties, demoted and had to fight dismissal charges. Meanwhile, the female officer received a $2.25 million settlement.

Blaine sued, alleging retaliation for refusing to change the evaluation and therefore refusing to discriminate against male officers by giving the complaining female officer preferential treatment.

A jury awarded him $750,000 in damages. (Blackstone v. Los Angeles, No. B234664, Court of Appeal of Cali­­for­nia, 2nd Appellate District, 2013)

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