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It’s easy to understand why supervisors and managers get upset when one of their subordinates files an EEOC complaint. After all, how can you not take it personally if someone says you discriminated based on race or sex or for some other illegal reason?

But the worst thing those managers and supervisors can do is punish the subordinate.

The test for retaliation is whether a reasonable employee would have refrained from complaining to the EEOC or the company in the first place, had he known he would have been fired, demoted or otherwise punished in some significant way. If that’s true, it’s not particularly hard to prove.

That’s why HR and management should ensure they could justify any adverse action that follows an employee’s complaint. That includes any changes in performance evaluations—especially in subjective measures such as cooperation or attitude.

Recent case: Ernest Bittle was one of four managers in an ERICO International Corp. division, three of whom (including Bittle) are black. Then the company created a new position within the division and promoted a white employee into it. Bittle—who had received very positive reviews, except for one comment alluding to a negative attitude—concluded he should have been offered the promotion.

Bittle filed an EEOC complaint and then a discrimination lawsuit. Then he alleged that, after ERICO found out about the complaint, it retaliated against him by not giving him a pay increase.

In court, ERICO pointed out that Bittle had topped out in his classification, and therefore was eligible for only cost-of-living raises. Plus, it pulled out his subsequent evaluations, which, although positive, contained additional comments on his need to have a better attitude, just as his pre-complaint evaluation also noted. The court dismissed Bittle’s retaliation claim. (Bittle v. ERICO, No. 1:07-CV-00155, MD NC, 2008)

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