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Track discipline to avoid retaliation against worker who charged discrimination

by on
in Employment Law,HR Management,Human Resources

It sometimes feels ominous when an employee accuses the company or a supervisor of discrimination and takes a complaint to the EEOC or some other agency. But those cases often reach settlement before they get out of hand and the legal tab grows. Then everyone has to get along, especially if the settlement includes reinstating the employee.

HR should take the lead in making sure a potentially awkward situation works smoothly. First, supervisors and managers who know about the settled complaint must understand that there can be no retaliation against the employee.

Second, HR should track disciplinary actions to ensure that any subsequent discipline against the employee is fair and evenhanded. Do that by making certain the returning employee is never punished more severely than other co-workers who break the same or similar rules.

Finally, conduct an impartial and fair investigation before approving any adverse employment action such as a discharge, demotion or pay cut. You don’t want to look as though you are rubber-stamping a supervisor’s possible retaliation.

Recent case: Charlotte Vigil worked as a pharmacy technician for a Safeway store. She complained to the EEOC that her supervisor tried to fire her because of her age and national origin.

Vigil and Safeway settled the case, and Vigil, who had quit because of the alleged discrimination, got her job back.

Shortly after she returned to work, Vigil took a phone call from a nurse who asked her to raise the dosage on a patient’s medication. When she asked her pharmacist supervisor what to do, she was suspended for taking the order—something she claimed she had never been trained to do properly. Safeway then fired Vigil.

Vigil sued, charging retaliation. She pointed out that several other pharmacy technicians who had violated prescription refill rules had been only warned, not fired. She said the company targeted her because of the earlier claim. Safeway argued that it had fired her for breaking a state law when she took the prescription over the phone.

The court said a jury should decide whether this was a case of retaliation. It did point out that Safeway couldn’t show that it had trained any of the technicians or even told them that they couldn’t take a change over the phone. That seemed suspicious to the court and smacked of possible pretext to get rid of Vigil. (Vigil v. Safeway, No. 07-CV-00816, DC CO, 2008)

Final note: The court was also highly critical of the investigation Safeway claimed it had conducted before it fired Vigil. Safeway could produce no notes or testimony—only a conclusion that Vigil had violated an internal rule against taking prescription changes over the phone. Always document all investigations.

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