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Use good notes to shoot down retaliation suits

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in Discrimination and Harassment,Human Resources

One of the easiest ways for an em­­ployee to win a lawsuit against his employer is to allege retaliation. That’s because retaliation is anything that would dissuade a reasonable employee from complaining in the first place.

If an employee shows he reported alleged discrimination and was then punished, he may have a retaliation case.

Fortunately, some courts are becoming more skeptical about retaliation lawsuits. They often now require the original complaint to be relatively specific—general complaints about workplace unfairness or poor working conditions won’t work.

Essentially, punishing someone for grousing about common everyday workplace problems won’t subject employers to retaliation liability.

Recent case: Joseph was a CIA intelligence officer. When a female supervisor arrived on the scene and began yelling at her subordinates, slamming doors and using profanity, Joseph started filing internal complaints. In none did he mention sex discrimination or any other specific form of bias.

Later, Joseph applied for several positions but was not selected. He attributed this to retaliation for his earlier complaints—and sued.

The court tossed out the case, concluding that even if Joseph could prove the CIA unfairly didn’t pick him for the jobs, he still wouldn’t have a retaliation lawsuit. That’s because none of his complaints mentioned sex or other discrimination. Since he never engaged in protected activity, he couldn’t have suffered re­­taliation. (Landino v. Sapp, et al., No. 12-1580, 4th Cir., 2013)

Final note: Keep copies of all complaints you receive. If they come in over the phone, make careful notes. Courts are impressed when employers can show what the employee claimed and when he claimed it. If he didn’t mention sex, race, disability, age or another protected class when he contacted HR, likely that wasn’t the issue.

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