Employers can’t retaliate against employees for complaining about alleged discrimination or harassment. But before something is considered retaliatory, it is measured by whether a reasonable employee would find the alleged retaliation severe enough to have dissuaded him from complaining in the first place.
That the employee who complained is super-sensitive doesn’t take minor incidents and turn them into real cases of retaliation.
Recent case: Stephen complained totwice about what he considered offensive harassment. First, he claimed to have found a cartoon depicting two men in what Stephen believed was a sexual manner. The second incident involved writing on a fuel tank that suggested Stephen was homosexual.
Afterward, Stephen claimed his employer retaliated against him by assigning him once to maintenance work that he considered demeaning and not inviting him to an employee “fun day.” He also claimed that a supervisor once told him not to talk to other employees.
The employer argued that no reasonable employee would have refrained from reporting discrimination or harassment based on the alleged retaliatory actions.
The court agreed and dismissed Stephen’s case because the incidents were minor annoyances at best. (Rodas v. Town of Farmington, No. 13-388, 2nd Cir., 2014)
Final note: Of course, if an employee complaints about graffiti, you should act promptly to remedy the situation. Remove offensive cartoons from bulletin boards and writing from company property as soon as possible. Train everyone on your expectations for civility.