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Document stressful work conditions to defend against retaliation claim

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in Discrimination and Harassment,Human Resources

Some jobs are inherently more stressful than others and some positions require careful supervision. Employees with such jobs may feel anxious and under constant scrutiny.

That can be an unexpected benefit should an employee claim some form of harassment based on sex, race, disability or other protected membership. That’s especially true if the employee alleges he reported harassment or otherwise complained about discrimination. Often, such employees perceive that their complaint has resulted in retaliation in the form of greater workplace scrutiny, discipline or other changes in the workplace.

But if an employer can show there was no difference in the work environment before and after a complaint, it won’t lose a retaliation case based on greater scrutiny, discipline or other intangible changes.

Recent case: Vic, who is gay, had a stressful job, answering calls about child-support enforcement. He and his co-workers typically spent 40 hours per week on the telephone, taking calls in close ­succession and often dealing with unhappy callers.

Supervisors kept employees on task. Strict monitoring was the standard. Hours worked and employee leave were closely monitored.

Supervisors noted employees’ arrival times, length of lunch breaks, the length of each call, the number of calls answered and the length of personal breaks. Daily reports showed when employees signed in and out, and if an employee signed in more than one minute late, a copy of the report was placed in the employee’s personnel file. All breaks, including lunch breaks, were tightly scheduled. Frequently, there was no time for unscheduled breaks.

Vic revealed his sexual orientation to his supervisors when he came to a company costume party dressed as a geisha.

He claimed that after his coming out, he faced greater call scrutiny, more discipline and generally faced more stress in the workplace and then quit.

He sued, alleging retaliation and harassment.

The employer argued that Vic wasn’t subject to any more scrutiny than other employees or that the intensity of supervision increased after his sexual orientation be­­came known. It also pointed out that Vic didn’t lose any benefits, pay or other job-related perks. In fact, he received a raise after he came out.

The court wasn’t convinced that Vic proved harassment or retaliation, noting that the job itself was inherently stressful and that what Vic described didn’t seem out of the ordinary. Nor did the judge feel Vic was justified in quitting. The court tossed out his lawsuit. (Gardner v. Abbott, et al., No. 03-12-00680, Court of Appeals of Texas, 3rd District, 2013)

Final note: Crucial in this case was the employer’s honest explanation of just how stressful the job was. Applicants were warned before they were even hired that expectations were high and that employees would be tightly monitored.

Plus, it showed the court that it dis­ciplined Vic (and other employees) both before and after he revealed his sexuality. By being able to show pre- and post-discipline, there was no doubt that Vic’s revelation didn’t lead to any substantial change. The workplace was a pressure cooker before and after.

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