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Testifying for fellow employee in race case provides retaliation protection

by on
in Discrimination and Harassment,Human Resources

Employees who testify in an internal investigation, an agency in­­vestigation or in court are protected from retaliation whether or not they belong to the same protected classification as the employee whose case their testimony supports.

Recent case: Tony, who is white, was a maintenance worker for Rice­­land Foods. He testified in an internal investigation that he had heard a supervisor, Ralph, frequently use offensive language about black em­­ployees. This included “calling them ‘n*****s,’ degrading their work, [and] saying they stunk.” When Tony asked him to stop, Ralph just said he would “treat the n*****s for what they were.”

Shortly after cooperating in the internal investigation, Tony was laid off, supposedly for budgetary reasons. He sued, alleging retaliation for his participation in the investi­gation.

A jury awarded him $60,000 in damages.

Riceland appealed, arguing Tony couldn’t sue because he is white.

The court disagreed. It concluded that testifying in support of a discrimination complaint by someone of another protected classification was indeed protected. Otherwise, fewer individuals would come forward. (Sayger v. Riceland, No. 12-3395, 8th Cir., 2013)

Final note: Remind everyone in management that an employee’s statement or testimony during an investigation is protected activity. Warn against any kind of retaliation, even if the internal investigation concludes there was no wrongdoing. It’s the act of testifying that matters—not whether you found the testimony convincing.

The court in this case was clear that protecting all participants en­­courages them to come forward.

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