Employers nationwide breathed a sigh of relief when the U.S. Supreme Court recently ruled that employees must promptly bring discrimination claims. But the decision in the Ledbetter case isn’t as simple as press coverage may have suggested. In fact, any move a supervisor makes that could be interpreted as retaliation for the earlier, expired claim may be seen as retaliation for earlier complaints.

For example, what happens if a supervisor gives demeaning or undesirable work assignments to an employee who two years ago complained about sex discrimination? If the employee can persuade a jury that the supervisor acted in retaliation, it opens the door to explaining the earlier discrimination, too.

Recent case: David Rhodes worked as a registered nurse at the State Correctional Institution at Somerset. He claimed he observed other nurses engaged in sexual relations with security guards while on the clock. He complained to management, which ignored him. Then he said co-workers tried to make his life difficult by leaving him locked out in the rain and making hang-up phone calls. He filed an EEOC complaint, but missed his federal lawsuit deadline by three days.

Then a supervisor lowered Rhodes’ performance evaluation and he filed another EEOC complaint. This time, Rhodes filed the federal lawsuit within the 90-day deadline. The prison tried to have the case thrown out, but the court refused. It reasoned that the lowered performance evaluation might be retaliation, and allowed testimony on the earlier complaints so Rhodes could show what his original complaint had been. (Rhodes v. SCI-Somerset, et al., No. 3:06-156, WD PA, 2007)

Leave a Comment