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Consistent policy, smart response get you off the hook for retaliation

by on
in Discrimination and Harassment,Employment Law,Human Resources

Barbara von Gunten's job as an environmental health aide forced her to spend most of the year in a two-person boat collecting water samples. She accused her boat mate of sexual harassment, saying he urinated from the boat, made crude comments, touched her and struck her in the buttocks with an oar.

A jury tossed out her sexual harassment claim, saying the employer had acted promptly on her complaint. But she had a second lifeline to cling to, a retaliation claim. She claimed the state agency took away her agency car and reassigned her to a less desirable job.

But the court threw this claim overboard, too. While most courts agree that a "tangible change in duties or working conditions" can equal retaliation, the court ruled that these changes didn't rise to that level. The state had a consistent policy of assigning cars to those who needed them most, and her temporary reassignment was made because she didn't want to work with the accused harasser and no immediate vacancy existed.

She also got nowhere in arguing about a poor job evaluation she received after filing her lawsuit. A smart move by the state agency saved the day. Here's what happened:

Because the state was in the process of changing appraisal forms, supervisors completed both the old form and the new one for von Gunten. That showed why her rating looked worse. When the available categories were trimmed from five to three, her "needs improvement" became an "unsatisfactory." Also, she still received a raise, so her retaliation complaint went splash. (Von Gunten v. State of Md., No. 00-1058, 4th Cir., 2001)

Advice: While it's vital that you don't retaliate against a worker involved in a lawsuit, you shouldn't coddle her, either. Consistency is the key. As long as your actions are based on solid reasoning and consistent policy, follow through, even if they have a negative effect on the complainer.

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