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Warn managers: Don’t fall into retaliation trap

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in Discrimination and Harassment,Employment Law,Human Resources

Courts take retaliation seriously. In fact, they may hesitate to say an employer discriminated against an employee based on race, sex, age, disability or some other protected characteristic, but they’ll clamp down hard if they have the slightest suspicion that the employer punished the employee for merely alleging discrimination.

Here’s how it works: To win a discrimination case, an employee has to show that he suffered an adverse employment action such as being fired or demoted. In other words, the employee must have lost something tangible.

That’s not true for retaliation. All an employee has to show is that what the employer did to punish him would dissuade a reasonable employee from complaining about discrimination in the first place.

Recent case: Michael Cunningham claimed that racial bias motivated a sexual harassment complaint that was filed against him.

After he complained, he said the department reassigned him from a fifth-floor office to a first-floor office where his staff worked, refused to hire his son for a summer position, checked his time records more carefully than before and canceled a training program he had developed.

Cunningham sued, alleging discrimination and retaliation.

The trial court dismissed his case, and he appealed. The 2nd Circuit Court of Appeals agreed that Cunningham didn’t have evidence of discrimination because he hadn’t suffered an adverse action—he hadn’t been fired, demoted or lost pay.

But the court said he should get a trial on retaliation. Cunningham will now have a chance to persuade a jury that his employer’s actions would have dissuaded a reasonable employee from complaining in the first place. (Cunningham v. New York State Department of Labor, No. 08-0992, 2nd Cir., 2009)

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