If employee makes threats, discipline isn’t retaliation

You’ve done everything right. You have a solid anti-harassment and discrimination policy, a simple and effective complaint process and you strive to fairly, completely and quickly resolve complaints. But what do you do when the employee who complained doesn’t like the results and blows up?

The key is to respond as calmly and rationally as possible—with appropriate and measured discipline if the situation merits. For example, it’s not retaliation to discipline an employee who threatens to take matters into her own hands.

Recent case: Erma McCoy, who is black, was a police officer. She filed an internal complaint against a white co-worker. She alleged he was harassing her because of her race and sex. She said he came into her office twice, threw wadded-up paper in her face and waited for her to react.

An investigation concluded that there was no racial or sexual component to the co-worker’s actions. The police department said they should both stop workplace “horseplay.” That conclusion didn’t sit well with McCoy, who started crying uncontrollably. She declared that she knew the investigation would turn out this way and “that’s the reason we have violence in the workplace.” She said if the department wasn’t going to take her complaint seriously, then she was going to “take care of it.”

The department told McCoy to turn in her gun, and she went on leave pending a medical examination. She eventually retired instead and filed a retaliation lawsuit.

But the court tossed out her case. It reasoned that the department wasn’t retaliating against her for filing the original complaint, but was acting reasonably in response to her perceived workplace threats. (McCoy v. City of Shreveport, No. 06-30453, 5th Cir., 2007)

Final note: Placing someone on paid leave could be retaliation in some cases—if the discipline might have dissuaded a reasonable person from filing the initial complaint. So could removing an officer’s gun and demanding her badge. It all depends on the circumstances. In this case, it was pretty clear the department had a good reason for its actions.

Supreme Court on retaliation and context

The U.S. Supreme Court has established a low threshold for what constitutes retaliation. In the well-known Burlington Northern case, the court articulated this test:

  • Not every slight, insult or snub is retaliation. The employer’s action must be materially adverse.
  • Materially adverse employment actions include any action by the employer that might dissuade a reasonable worker from making or supporting a charge of discrimination.
  • The action doesn’t need to end in a lost job, pay or promotions. It can include a paid or unpaid suspension, transfer to another shift or being passed over for an award or bonus. Anything that would dissuade a reasonable employee, had she known the consequences, may be materially adverse.
  • Context matters. Employers still can enforce legitimate workplace expectations, but must be careful to treat everyone equally and not single out someone who filed or supported a complaint.