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Without ‘ultimate employment action,’ it’s hard to make discrimination claims stick

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in Employment Law,Hiring,Human Resources,Leaders & Managers,Management Training

Employees who think they are victims of some form of discrimination must show they were treated differently in some important way because of their race or other protected characteristic.

Those differing treatments can involve hiring, granting leave, discharging, promoting or making pay decisions.

Those are considered “ultimate employment actions.” Minor annoyances—such as heavier workloads—are not usually considered discrimination.

Recent case: Don Wesley, who is black, charged that his employer made him do more work than white or Hispanic employees. He also said he got shorter breaks and was warned more often about being tardy. He sued, alleging discrimination.

The court tossed out the case, concluding that these were annoyances, but not enough to constitute discrimination. (Wesley v. Yellow Transportation, No. 3:05-CV-2266, ND TX, 2008)

Warning: While such disparate treatment may not amount to discrimination, it could be retaliation.

Consider, for example, if Wesley had filed an EEOC complaint alleging discrimination—and after he did, management gave him a heavier caseload, allowed shorter breaks and criticized him for being late more often than it did other tardy employees. That might be retaliation. And any action that would dissuade an average employee from complaining in the first place can be considered retaliation. No ultimate employment action is needed to win a retaliation lawsuit.

That’s why it’s crucial to remind all managers and supervisors to avoid even the appearance of retaliation.

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