When it comes to retaliation, timing is everything. It’s impossible for an employer to retaliate against an employee for complaining about alleged harassment or discrimination before the employer knows about it.
That’s why it’s so important to note for the record every harassment or discrimination complaint, whether it comes in via a phone call or e-mail, an interoffice memo or some oral notice. Note the date and the exact time HR or a supervisor got the complaint. Plus, make sure all managers and supervisors understand that they must immediately inform HR of any complaints.
Consider a simple paper log, listing who made the complaint, what the complaint was and when. That will establish exactly when someone in first learned about the problem.
If HR doesn’t have a clear record, it becomes much easier for an employee to cry retaliation. In fact, it is common for employees who realize they face job performance criticism to complain about alleged discrimination in an attempt to prevent adverse employment actions. That won’t work after the fact if you can tell exactly when the complaint came in.
Recent case: When Kevin Culton began dating a co-worker, he learned that his new romantic interest had been sexually harassed by another employee. In perhaps typical fashion, Culton confronted the alleged harasser and told him to stop or he would call the man’s wife.
When Culton was late coming back from an assignment, his supervisors scrutinized his job performance and found out he had neglected his duties. They reassigned him. At that point, he brought up the sexual harassment allegation.
Culton sued, alleging retaliation for reporting the harassment. But the employer was able to demonstrate that it discovered the work problems before Culton reported the alleged harassment. The case was dismissed. (Culton v. Missouri Department of Corrections, No. 07-1307, 8th Cir., 2008)
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