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When push comes to shove, no retaliation unless protected right was violated first

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in Discrimination and Harassment,Employment Law,Human Resources

Employees who complain about alleged discrimination or harassment that violates Title VII or other anti-discrimination laws are protected from retaliation for reporting their allegations.

But that doesn’t automatically mean every complaint about workplace problems is protected. If the complaint doesn’t touch on clearly identifiable workplace rights, it’s just a complaint.

Recent case: Terrance Malone worked for New York City as a corrections officer. After responding to an emergency incident, he returned to his assigned area. Apparently a supervisor got angry because Malone should have returned to a staging area first. The supervisor called Malone several times and berated him.

When Malone hung up, the supervisor came to see him. Malone claimed the supervisor pushed him during the ensuing argument. At the time, Malone was on the phone with another supervisor, complaining about what was happening and explaining that he was frightened.

Malone sued, alleging retaliation for complaining about the tongue-lashing he received for not reporting to the staging area. The alleged retaliatory act? Being pushed.

The court tossed out his case. It reasoned that there was nothing protected about Malone’s complaint.

That is, nothing in the conflict had anything to do with race, sex, disability or another protected characteristic. So even if the push was punishment, it wasn’t retaliation for complaining about possible discrimination. (Malone v. City of New York, No. 05-2882, ED NY, 2010)

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