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Justify decisions to thwart retaliation bait & switch

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in Employment Law,Human Resources

One of the most popular litigation tactics these days starts with an employee filing a discrimination complaint. Then the employee—and her attorneys—sit back and wait to see what happens. If the employer somehow punishes the employee, the attorneys add a second count to the lawsuit: retaliation.

It’s often a good strategy because it’s far easier to win a retaliation case than the underlying discrimination case. The courts have been clogged with these kinds of cases ever since the U.S. Supreme Court ruled that retaliation is anything that would cause a reasonable employee to think twice before complaining about discrimination.

Lately, however, courts have become more willing to throw out some of these cases, reasoning that not every petty slight or criticism amounts to retaliation.

Advice: Be ready to justify every single decision you make about evaluations, discipline, criticism and pay. That way, you can readily show the court that there was no retaliation.

Recent case: Sheryl Byrd filed a complaint against the university where she worked, alleging a discriminatory pay scale that favored men over women. Shortly after Byrd complained, her job was reclassified and she got a slightly different job description. About the same time, Byrd’s bosses also criticized her for several instances in which they said she showed poor judgment. However, she also received a good evaluation, ranking her as a “commendable” performer. She got a pay raise of more than 8%.

Still, Byrd sued, claiming her job reclassification and new job description were retaliation for complaining about pay inequities.

But the university was prepared. It explained that the reclassification didn’t just affect Byrd. Other jobs were also reclassified. Plus, the job description change merely corrected an earlier error. The university also pointed to the raise as evidence it wasn’t retaliating.

The 11th Circuit Court of Appeals sided with the university. It said the reclassification (and the criticisms) were mere annoyances everyone must expect to encounter in the workplace, not retaliation. (Byrd v. Auburn University, No. 07-12335, 11th Cir., 2008)

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