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Your rules can protect against retaliation—make sure managers follow them

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

Juries get suspicious when they hear about employers that claim they have rules and then don’t follow them. Let’s face it: Most jurors are employees themselves, and they may naturally distrust employers.

So when they hear that a company has a clear set of disciplinary rules but made an exception in the case of someone who just filed an EEOC or internal discrimination claim, they may jump to the conclusion retaliation occurred.

Recent case: Kim Smith worked for Xerox for more than 20 years, and got consistently good reviews. But when a new supervisor arrived on the scene, she began getting poor reviews and found her job duties had changed. She blamed it on age or sex discrimination and complained. That’s when she ended up on probation.

There was evidence that Xerox failed to follow its own established procedures in disciplining Smith. For example, Xerox placed Smith on a 60-day probationary period on Oct. 28, 2005. On Nov. 17, Smith told Xerox she had filed an EEOC charge. Twelve days later, barely halfway through the probationary period, Smith’s supervisor initiated paperwork to terminate her. She was fired.

Smith sued, alleging discrimination and retaliation.

The jury said she hadn’t been discriminated against, but said she had been retaliated against. It ordered punitive damages in addition to lost wages and attorneys’ fees.

The judge upheld the jury’s decision, writing that the fact that the company failed to follow its own rules was evidence of retaliation. Even though several Xerox employees insisted that Smith was fired for no reason other than poor performance, the jury apparently didn’t believe it. (Smith v. Xerox, 3:06-CV-1213, ND TX, 2008)

Final note: This case illustrates a classic employer trap: You can win the discrimination part of a lawsuit and still lose big on a retaliation claim. Make absolutely sure no employee is ever punished for trying to complain about discrimination.
How do you persuade supervisors and managers that they need to adopt a hands-off policy to employees who complain? Try explaining how much it can cost to retaliate.

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