Know the law: Protected activity is essential before employee can claim retaliation — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Know the law: Protected activity is essential before employee can claim retaliation

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in Discrimination and Harassment,Human Resources

Some employees complain all the time and don’t get along with their bosses and co-workers. But if their complaints aren’t specific and don’t raise at least potential discrimination based on race, age, sex or some other protected characteristic, their complaints aren’t so-called “protected activity.” Therefore, they can’t be the basis for later retaliation claims.

Lesson: Don’t shy away from legitimate criticism or discipline just because the employee has complained loudly and often about how unfair things are at work.

Recent case: Patrice, who is black, complained over several years that her supervisor at Texas A&M was unfair and created what she called a hostile environment.

She never, however, stated that she believed her race or other protected characteristic was the reason for her supervisor’s hostility.

When she was discharged, she sued, alleging retaliation.

But the court said she hadn’t engaged in protected activity when she complained about her supervisor and therefore could not have suffered retaliation. Her retaliation claim was dismissed. (Barnes v. Texas A&M, et al., No. 14-13-00646, Court of Appeals of Texas, 14th District, 2014)

Final note: Patrice also claimed she worked in a hostile environment and had complained about a co-worker who allegedly made a racial comment. When the university asked the court to dismiss the case, it apparently didn’t specifically request dismissal of the hostile-environment claim. Because it didn’t, that claim remained and Patrice will have another chance to prove she worked in a hostile environment.

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