Employers have faced more retaliation claims ever since the U.S. Supreme Court made such cases easier to win by ruling that retaliation is an action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
While the federal courts have placed some limits on what constitutes a retaliatory act, they continue to struggle with the question.
For example, the 8th Circuit Court of Appeals, which covers Minnesota employers, has ruled in a series of cases that it is not retaliation to “commence a ,” “send a critical letter threatening disciplinary action” or even remove mentoring opportunities if the actions don’t actually have an adverse consequence for the employee.
In other words, the alleged retaliation has to affect pay, benefits or some other tangible aspect of the employment relationship.
Recently, the 8th Circuit grappled with a case in which the employee alleged that he had been retaliated against when he was warned that his behavior could result in termination. The court didn’t immediately dismiss the action as nonretaliatory. Instead, it went on to analyze whether the action was related to an earlier EEOC complaint the employee had filed.
That’s why employers should be prepared, if possible, to show that whoever issues a disciplinary notice didn’t know about any earlier complaints.
By walling off the decision-maker from the earlier complaint, you cut the connection between the disciplinary action and the complaint.
Recent case: Willie Littleton, who is black, works as a truck driver who delivers diesel fuel to truck stops. He filed an EEOC complaint alleging race discrimination because he missed out on a pay increase he claimed white drivers received.
Seven months later, he received a disciplinary warning after someone at a truck stop complained that Littleton was spreading rumors that a manager was dishonest and gay. Truck stop employees told company investigators that Littleton was disruptive and had harassed others, too. The warning letter said that if the behavior recurred, Littleton would be terminated.
Littleton sued, alleging retaliation for the original EEOC complaint. The company argued that a mere disciplinary warning wasn’t retaliation.
The court said the case was a close one—and assumed the warning might be retaliatory if it was connected to the EEOC charge. Fortunately for the company, it was clear that no one involved in the discipline knew about the EEOC complaint. Since they didn’t know, they couldn’t have retaliated.
The court also dismissed Littleton’s original pay claim. It turned out that he already earned more than the white drivers who got raises. (Littleton v. Pilot Travel Centers, No. 08-1221, 8th Cir., 2009)
Final note: When it comes to discrimination complaints, keep the information as confidential as possible. Only those who need to know the details should have access to the information. While you can’t prevent the employee from telling everyone about his complaint, you don’t have to add fuel to the fire. Keep things professional.
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