Employees who go to HR or the EEOC with a discrimination complaint engage in what’s called protected activity.
Even if their claims don’t pan out, they can’t be punished for complaining in the first place. That’s retaliation and can form the basis of a lawsuit on its own, even if there was no underlying discrimination.
Be sure that HR and anyone else who is on the receiving end of a complaint knows to compile careful documentation.
If the employee never mentioned discrimination and nothing she said indicated that the complaint concerned bias, that may mean she didn’t engage in protected activity after all.
Those notes on the conversation may come in handy later if she alleges retaliation.
Recent case: Donna worked for the Philadelphia Police Department. At one point, she went towith a complaint alleging that her supervisor had engaged in some sort of wrongdoing, although she wasn’t very specific. (She later indicated it had something to do with a radio.)
Donna sued after her supervisor allegedly told fellow officers not to talk to Donna because she had filed an internal-affairs complaint.
The court dismissed her case. It reasoned that the vague internal complaint didn’t seem to have anything to do with any kind of federally protected discrimination.
Therefore, it wasn’t protected activity—and no protected activity means no retaliation. (Spangler, et al., v. City of Philadelphia, et al., No. 12-2880, 3rd Cir., 2013)
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