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Many supervisors and managers have yet to learn they shouldn’t make any comments about an employee’s EEOC or other discrimination complaint. Apparently, it hasn’t sunk in that employees can lose a discrimination case and still win a retaliation claim—all because of management’s loose lips.

Remind supervisors that any comment about employees’ legal claims can be retaliation—and retaliation is much easier to prove than actual discrimination.

Recent case: Maggie Franklin, who is black, worked for the Sacramento Area Flood Control Agency. She had a turbulent time at work. One manager constantly criticized her and scrutinized her time sheets. She filed a discrimination complaint, which was settled with back pay and the promise that the employer would conduct diversity training.

Then Franklin got a new supervisor. One of the first things he told her was that he could not work with someone who had filed discrimination charges. Franklin said that sounded like retaliation, and the new supervisor said, “It’s not retaliation, it is a fact.” Franklin then asked whether they were going to have the diversity training. He said he didn’t think it was his responsibility to hold that training. After Franklin was fired for poor performance, she sued, alleging racial discrimination and retaliation.

The court dismissed the discrimination claim, noting that the employer had ample proof of poor performance. But the court refused to end the retaliation claim. It reasoned the supervisor’s statements followed so closely by termination might be enough to dissuade a reasonable employee from filing a discrimination complaint in the first place. (Franklin v. Sacramento Area Flood Control Agency, No. 07-1263, ED CA, 2009)

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