Life can be unfair. When an employee complains about unfairness at work, make sure you document the complaint and make some notes on exactly what she said.
That’s because if she later is demoted or terminated, she may claim that the adverse employment action was retaliation for her complaint.
If you can show she never mentioned sex, race, age or some other protected characteristic as the underlying reason for the “unfair” treatment she complained about, she hasn’t engaged in “protected activity” and can’t bring a retaliation claim against her employer.
Recent case: Stacy had a private office at the insurance company where she worked. Many others in her job classification did not. When the company reorganized, she found out she would be working on different accounts in a shared office.
Immediately after the announcement, she complained to her supervisor that the reorganization was “unfair” to her and that a male employee had taken over some of her old accounts, plus a private office.
Later, Stacy was terminated for alleged unethical behavior.
She sued, alleging sex discrimination and retaliation for complaining earlier. It was then that she said the reorganization, office change and male co-worker reassignment was sex discrimination.
But the supervisor testified that although Stacy had complained about the “unfair” move, she had never said she believed sex discrimination was the underlying reason. The judge tossed out Stacy’s retaliation claim, reasoning that she had never engaged in protected activity. Sex discrimination at work is illegal; unfairness at work isn’t. (Brown v. National Penn Insurance, No. 5:13-CV-01748, ED PA, 2014)
Final note: Train supervisors to keep short, dated notes about any complaint a subordinate brings. If the employee mentions discrimination, the supervisor should immediately contact HR.
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