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When bias claims fly, beware lenient courts

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in Discrimination and Harassment,Human Resources

Here’s an important factor to consider when terminating an employee who has recently complained about alleged discrimination of some sort: If she can show at least a tenuous connection between her complaint (like its timing) and her discharge, she will probably be able to proceed with her lawsuit. Her former employer won’t get the case dismissed at least until discovery has occurred. And that can mean a ton of legal expenses.

Recent case: Vanessa, who is black and worked as a health care ­coding expert, claimed that a co-worker used a racially offensive term. The co-worker is white.

Vanessa complained to her supervisor, who is also white. The super­visor told Vanessa to “sleep on it,” which she took to mean that she should think twice about raising a fuss. But Vanessa went to HR anyway and complained. She was fired five days later.

She sued, alleging race discrimination. Her former employer argued that the case should be dismissed because at most, Vanessa complained about an isolated co-worker comment. It said that wasn’t enough to show Vanessa was fired on account of her race.

The court determined the case should continue. It said Vanessa should have an opportunity to prove that an employer that tolerated a racial comment and then dissuaded a black employee from complaining might then go ahead and fire her because of her race. The court admitted this was a stretch, but good enough to allow the case to go forward. (Evans-Rhodes v. Northwest Diag­­nostics Clinic, No. 4:13-cv-01626, SD TX, 2013)

Final note: What should the employer have done? At the very least, it should have carefully in­­vestigated Vanessa’s discrimination complaint.

Advice: Don’t fire complainants unless you are absolutely sure you have rock-solid reasons for doing so—reasons completely unrelated to the complaint.

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