Retaliation cases continue to cause more and more headaches for employers. Ever since the U.S. Supreme Court declared that the threshold for retaliation is much lower than for discrimination itself, employees who have filed discrimination complaints are finding that by charging retaliation, they get a second chance to drag their employers into court.
That’s why it is absolutely crucial for HR to train supervisors and managers on retaliation.
The rule: If a reasonable employee would think twice about complaining about discrimination if she knew ahead of time that she would be punished, it’s probably retaliation.
The punishment can be anything from termination to something as petty as a shift change. It can even be as minor
as failing to consult an employee’s doctor before making the employee take a strenuous fitness-for-duty test.
Recent case: Janus Burgos worked for the U.S. Department of Homeland Security (DHS) and had settled a disability claim with the agency.
Burgos then alleged that DHS retaliated against her because of her earlier complaint by breaking the settlement agreement and subjecting her to a fitness-for-duty examination before she could consult her doctor.
The 11th Circuit Court of Appeals concluded Burgos wasn’t disabled under the law and therefore didn’t have a disability harassment case.
However, the court did order a trial court to consider whether she had a retaliation case. The lower court now will have to decide whether DHS had a legitimate reason for having Burgos take the fitness-for-duty test without input from her doctor—or if the test was meant to punish her for her earlier complaints. (Burgos v. Chertoff, No. 07-12954, 11th Cir., 2008)
Final note: Settled a case? Make sure you follow the agreement exactly to avoid a retaliation lawsuit.
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