Beware boss backlash after complaint–you’re probably looking at retaliation

It usually happens like this: An employee comes to HR complaining that her boss said something inappropriate—maybe it was a sexually explicit joke, racial slur or offensive comment about someone’s religion. Then the supervisor gets angry at the employee for complaining and retaliates.

Now, the employer has an even bigger problem, because even if what the employee complained about in the first place wasn’t grounds for a lawsuit, retaliation is.

Your best bet in situations like that: Warn the supervisor that the company never tolerates retaliation, even if everyone agrees the underlying complaint doesn’t have merit.

Follow up right away with the employee who complained. If the manager tries to discipline the employee or if her work is suddenly criticized, think twice before disciplining. Don’t do anything until your attorney has reviewed any proposed punishment, such as a poor review or termination.

Recent case: Catherine, who is black, worked at the Mayo Clinic in the cancer research division. She got good reviews and regular promotions.

Then she complained to HR that several supervisors had made racially offensive statements. For example, Catherine recounted that her two supervisors referred to her as “a product of environment” and used the term, “you people” in reference to black people. Plus, the two allegedly called President Obama a “sock monkey” and referred to First Lady Michelle Obama as a man.

Catherine claimed that she was warned she faced negative consequences if she made any more reports. One supervisor then hung a poster on her door depicting a kitten looking through the scope of a high-powered rifle. It was captioned, “The day the barking stopped.” The supervisor allegedly told Catherine, “This is what we do to barking dogs in our neighborhood.”

Suddenly, Catherine began to be marked as tardy when she was even one minute late. She rapidly accumulated attendance points under Mayo’s no-fault attendance program.

She also began receiving far more work than she had in the past, but somehow managed to get it completed. This, she argued, further angered her supervisors to the point where one sent an email stating that she wanted to “kill” Catherine. That email was accidentally sent to everyone in the department.

Catherine again complained to HR, but was fired shortly after for having been late too many times. She sued, alleging racial discrimination and harassment.

The court concluded that her original complaint did not add up to race discrimination. However, it also concluded that Catherine’s treatment in the wake of her original complaint could be retaliation. It ordered a trial. (Smith v. Mayo Clinic, No. 14-1833, DC MN, 2016)

Red flag: Be on the alert if criticism suddenly starts up against an employee who just complained to HR and who has never had any previous performance, attendance or discipline problems. It’s an obvious signal that retaliation may be a problem.

Remember, retaliation can occur even if the issue the employee complained about doesn’t wind up having merit, as long as the complaint was made in good faith. In this case, Catherine complained about what she perceived as possible racism. Then she found herself buried in work and criticized for being slightly late.

HR probably should have stopped the termination and explored a transfer to different supervisors.