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Thwart retaliation claims by documenting your rationale for handling of original complaint

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in Discrimination and Harassment,Human Resources

The fastest growing category of discrimination complaints is retaliation. The reason is simple: They are easier to win than underlying discrimination cases. All an employee has to prove is that his employer punished him in a way that would dissuade a reasonable employee from complaining in the first place.

Be prepared. Document your disciplinary actions to show they were legitimate and unrelated to an em­­ployee’s original complaint.

Recent case: Jiuhong Yuan was a researcher at the University of Texas. When he discovered that his research partner was having an affair with another employee, he reported it as possible sexual harassment.

That caused tension between Yuan and the research partner over ongoing research and who should receive credit for the work.

Yuan’s complaint was dismissed. Then he complained about not getting credit as lead investigator on a paper. The university cited long-standing policy when it said it would not get involved in the academic dispute.

Yuan sued, alleging the inaction was retaliation for reporting the affair.

The court disagreed. It said the university’s stated reason—abiding by a long-standing policy—was a legitimate reason and not retaliation. (Yuan v. University of Texas, No. 01-09-00947, Texas Court of Appeals, 2012)

Final note: As a practical matter, it is hard to ban all romantic relationships at work, even though they often result in later sexual harassment complaints. If you allow dating, make sure you address the issue during sexual harassment training.

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