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No kid gloves needed: Discipline OK after employee complains

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in Discrimination and Harassment,Employment Law,Hiring,HR Management,Human Resources,Leaders & Managers,Performance Reviews

Employees who complain about harassment or discrimination often mistakenly believe they are automatically protected from discipline. They’ve heard employers can’t “retaliate” against them for complaining.

That’s true to a point. Employers can’t punish employees for bringing up possible harassment or discrimination.

That doesn’t mean, however, that those employees get automatic immunity from any pre-existing workplace performance or behavior problems. Employers can and should continue to manage an employee who has complained exactly as they would any other employee—and to expect good performance and compliance with workplace rules.

Recent case: Christina Argyropoulos worked as a jailer for the city of Alton. Although she got a largely satisfactory performance review, her supervisors did note that she seemed to have trouble getting her job done promptly and couldn’t do more than one task at a time.

Then she complained that a co-worker had sexually harassed her when he made a comment after she spilled something on her chest. The city launched a sexual harassment investigation and began interviewing everyone involved.

A few months later, while the investigation was still pending, Argyropoulos was called into a meeting with her supervisors. What she didn’t know was that they wanted to discuss her falling performance, not the investigation. But she had a tape recorder hidden in her jacket pocket, and proceeded to tape the meeting without her boss’s permission.

Later, a co-worker discovered that Argyropoulos had recorded the meeting. The co-worker told a supervisor. The city then got the district attorney involved, and police got a search warrant for the tape. (It is a criminal offense in Illinois to secretly record conversations.) Police searched Argyropoulos’ house and car and found the tape—after she told police it didn’t exist. She was fired shortly after for illegally recording the meeting and for lying to authorities.

Argyropoulos then sued for retaliation, claiming it was perfectly fine to secretly record what she believed was going to be a meeting about her sexual harassment case. She said she was merely gathering evidence. Plus, she said the city was trying to punish her for complaining by finding an excuse to fire her.

The 7th Circuit Court of Appeals rejected her claim. It said that filing a Title VII complaint doesn’t give employees the right to engage in “dubious self-help tactics or workplace espionage …” and that employers are free to punish such conduct. The court also said the city was merely enforcing pre-existing rules about not breaking the law and not lying to authorities when it punished her for the illegal recording. (Argyropoulos v. City of Alton, No. 07-1903, 7th Cir., 2008)

Final note: Nothing in Title VII gives employees the right to break rules simply because they filed a discrimination complaint.

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