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Listen for code words when evaluating discrimination complaints

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in Discrimination and Harassment,Employment Law,Human Resources

The law protects employees from retaliation for complaining about alleged job discrimination. That doesn’t mean, however, that employees have to state specifically that their concerns involve sex, race or some other protected characteristic.

As the following case shows, something as simple as complaining about “the glass ceiling” may be enough to at least raise the specter of sex discrimination.

Recent case: Jeri Gates began working for Caterpillar as a clerk and slowly worked her way up to more responsible positions. She wanted to move to a different department to further her career, but was held back because her supervisors said they needed her at least until they could replace her skills.

Gates told her boss that she thought “the glass ceiling” was preventing him from supporting her move. Although she complained often, that was the closest she came to alleging sex discrimination. Later, Caterpillar fired her for allegedly using the company e-mail and phone systems excessively for personal matters.

She sued for retaliation. Caterpillar said it had no idea Gates’s many complaints had been about alleged sex discrimination, and therefore it couldn’t have retaliated against her.

The court sidestepped ruling that the glass ceiling comment alone was enough to mean she complained about sex discrimination. It did, however, conclude Caterpillar had a legitimate reason to fire Gates and that she couldn’t show a connection between her complaint and the discharge. (Gates v. Caterpillar, No. 06-1606, 7th Cir., 2008)

Advice: Nonetheless, employers would do well to listen for code terms employees might use, and treat them as if they were discrimination complaints. That means conducting an investigation of the matter. Also, consider adopting an open promotion system that doesn’t allow managers to block transfers and promotions.

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