Some employers mistakenly believe that having employees work on a contractual basis will save them from litigation. If they decide not to renew the contracts of workers considered “troublemakers,” they figure they can avoid being sued. That’s a big mistake.
Instead, make sure your reasons for not renewing a contract are just as well documented and reasonable as in any other termination.
Recent case: Monica and two other women worked on renewable one-year contracts at University of Texas Health Science Center. Monica believed they were being sexually harassed and complained to HR. She claimed a supervisor had read aloud from a lewd Internet story and given one of the women a sexually explicit doll. The other two women also complained about the doll.
The center investigated and concluded that the behavior, though inappropriate, wasn’t sexual harassment.
When it was time to renew their contracts, all three women found themselves without jobs. Monica sued, alleging both sexual harassment and retaliation.
The court dismissed her sexual harassment claims, but said her retaliation case could go forward. The judge considered the fact that the other two women had also complained and lost their jobs. That was evidence that their protected activity was tied to the nonrenewal. (Hague v. University of Texas Health Science Center, No. 3-50102, 5th Cir., 2014)
Final note: Remember, it’s almost always easier to prove retaliation than the underlying discrimination. That means employers can win the discrimination battle but lose the retaliation war.
According to the courts, retaliation is any adverse employment action that would dissuade a reasonable worker from complaining in the first place. Anything like a shift change, demotion, lost job or other serious consequence that follows a discrimination complaint could mean litigation.
Advice: Warn managers and supervisors against punishing workers who have complained. Document any discipline.
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- If worker on RIF list has sought reasonable accommodations, be prepared to justify