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Want to create an instant retaliation claim after an employee says she lost out on a promotion because of discrimination? Just let a supervisor or manager react angrily to the accusation.

It’s dangerous for managers to make any negative comments in the wake of what an employee says was discrimination. Bosses must learn to hold their tongues.

Here’s why: The employee probably already has retained an attorney who has coached her to be on the lookout for retaliation. The attorney knows that it’s far easier to win a retaliation claim than it is to win the underlying discrimination case.

That’s because just about anything an employer does that would dissuade a reasonable employee from complaining about discrimination in the first place can be retaliation.

Recent case:
Tracy Derby worked as a civilian IT specialist for the Marine Corps and applied for a promotion. Based on the information in her résumé and application, she was one of the two highest-scoring applicants. When the Marines selected a man, she suspected sex discrimination. She thought the hiring supervisor had manipulated the selection process to favor the male candidate he wanted in the job.

Shortly after she filed a sex discrimination complaint, she claimed she heard that two supervisors said they would “guarantee” that Derby would “never again be a team or project leader.” Later, Derby was removed from a leadership role on a project and denied the opportunity to attend an executive leadership training program.

The Marine Corps said Derby lost the lead role because of a reorganization and that, to save money, it was no longer sending anyone to training.

But the court said the supervisors’ comments cast doubt on that explanation and ordered a trial on the retaliation claims. (Derby v. Winter, No. 4:06-CV-266, ED NC, 2008)

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