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OK to discipline worker who has complained, but be sure you can justify your decision

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in Discrimination and Harassment,Human Resources

Employees are protected from re­­taliation for complaining about alleged discrimination or harassment. Sometimes, supervisors and man­­agers think they can’t discipline a complaining employee at all for fear they will be accused of retaliation. But that’s not the case.

Courts don’t want to tie management’s hands; they just want to protect employees from genuine retaliation. That’s why the standard for retaliation is anything that would dissuade a reasonable worker from complaining in the first place.

Most minor discipline doesn’t reach that level.

Recent case: Amado complained to his supervisors that he had to work in a hostile environment. After the complaint, he was verbally counseled for taking too long to complete assignments and for misusing an electric buggy on the shop floor.

He sued, alleging that the discipline was retaliation for his original complaint.

The court said the verbal counseling would not have dissuaded a reasonable worker from complaining. It dismissed his lawsuit. (Mendoza v. Bell Helicopter, No. 12-11053, 5th Cir., 2013)

Final note: Warn supervisors against retaliation. Ask them to consult with HR before any discipline, including verbal reprimands. Then consider the hypothetical reasonable employee before approving the discipline. Would being on the receiving end of the discipline make you reconsider whether to raise a discrimination issue? If so, make sure the discipline is truly warranted.

Remember, it isn’t that you can’t discipline a complainer—it’s just that you must make sure you can justify the discipline.

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