Want to know the easiest way to turn an almost-sure win in court into an almost-certain loss? Allow supervisors to tell employees they should drop an EEOC or other discrimination claim.
The simple act of suggesting that a lawsuit isn’t in the employee’s best interest may amount to retaliation if the suggestions would dissuade a reasonable employee from complaining in the first place.
Recent case: Kenneth Fallon worked for the U.S. Postal Service and claimed that his black supervisor discriminated against him because he is white and from New Orleans. Fallon filed numerous EEOC and internal discrimination complaints, none of which ended up being valid. But that didn’t mean that Fallon won’t get a chance to persuade a jury he was retaliated against for filing those complaints.
It seems Fallon’s supervisor told him many times that he should drop the complaints. He made comments like, “If you continue to file these charges, I’ll show you what you are up against,” and “You need to call [the EEOC officer] and talk to her so you can drop this.”
A court said that was enough to warrant Fallon’s retaliation lawsuit—because a reasonable employee might have been discouraged from pursuing a discrimination claim under the circumstances. (Fallon v. Potter, No. 07-30522, 5th Cir., 2008)
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