One of the easiest ways for employees to win discrimination cases is to allege that their employers punished them for complaining about alleged discrimination. Often, employees win those retaliation cases even while losing the underlying discrimination complaint.
Here’s how it happens: To prove discrimination, employees have to show the court that they were a member of a protected class and were discriminated against because of that membership. That’s relatively hard to do. But proving retaliation is easy. The U.S. Supreme Court has ruled that the retaliatory act only has to dissuade a reasonable employee from bringing up possible discrimination. Depending on the circumstances, a changed shift or some other minor alterations in the terms and conditions of employment can be enough to make a retaliation case.
But employers can defeat retaliation charges by showing that the employee never complained in the first place. No complaint, no retaliation. Showing that is as easy as demonstrating that the HR office never got an EEOC or PHRC complaint from the employee, and that there were no formal or informal internal complaints either.
Recent case: Steve Evans stocked bathroom fixtures and often missed work for minor injuries. He frequently requested minor accommodations, which his company sometimes granted. Then he was fired for not following his supervisor’s directions.
He sued for disability discrimination and retaliation. The court dismissed his ADA case because he wasn’t disabled. Then the employer showed that it never got either an EEOC complaint or a PHRC complaint, nor had it received any internal complaints. The court dismissed the retaliation count, too, reasoning that there could be no retaliation if the employer was unaware of any complaints. (Evans v. MAAX-KSD Corporation, No. 06-CV-2804, ED PA, 2008)
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