Employees are supposed to be protected from retaliation for complaining about alleged discrimination. That retaliation doesn’t have to involve termination, suspension, a pay cut or demotion. Instead, retaliation is anything that would dissuade a reasonable employee from complaining in the first place.
The trouble with that definition is that a judge has to look at the totality of the circumstances. Something minor and fleeting isn’t retaliation, but a series of mini-punishments may be enough.
That’s why you should tell supervisors and managers to look out for co-worker antagonism. Avoid the appearance of retaliation by making sure bosses enforce all rules equally and fairly.
Recent case: Peter worked as a custodian at a shopping center and complained to his supervisors and HR that a co-worker was sexually harassing him and making him uncomfortable. According to Peter, nothing was ever resolved. He decided to file an EEOC complaint.
Peter then claimed he was being retaliated against for complaining. For example, he described several instances in which co-workers were able to change their schedules on their own. However, when he did that, he was warned he would be fired. Peter also said his co-workers “mocked” him, and his supervisor took pictures of his car and followed him around.
While the judge considering the case concluded that none of the incidents on their own constituted retaliation, taken together they might dissuade a reasonable employee from complaining in the first place. A trial is next. (Tournois v. Waterloo Premium Outlet, No. 12-CV-6501, WD NY, 2013)
Final note: All complaints should be promptly and fairly resolved and every worker who complains should get follow-ups asking about retaliation. If there are problems, fix them.
- You can require tests to set disability accommodations
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- Terminating after FMLA leave expires? Be sure to apply rule consistently
- 'Same-actor' defense won't always work; establish unbiased reasons for firings
- Educate employees about the value of disability insurance