The Employer Handbook Blog
I enjoy blogging about employment law. But occasionally, perhaps after a long day, I wish some of these blog posts would write themselves.
Last night, I got my wish. Continue reading
Articles Posted in Retaliation
Here are five signs that your employee’s retaliation lawsuit ain’t all it’s cracked up to be
An employee who claims retaliation in federal court must demonstrate they suffered treatment was “materially adverse,” i.e., something that could reasonably have dissuaded a reasonable worker from participating in a protected activity, like complaining about discrimination.
Last night, I read a decision from a federal judge in New York weighing allegations that the plaintiff’s supervisors knew the plaintiff had filed several EEO complaints and then retaliated against her.
But were the acts of retaliation “materially adverse”? Not really. No.
Can we fire an employee who complains about discrimination and is dead wrong?
I mean, sure. It’s a free country. This isn’t Communist Russia.
But if your company is concerned about a subsequent retaliation claim, read on.
What is (and is not) considered retaliation?
A director for a major transit authority applied for two internal promotions. She didn’t get either. Feeling that she was more qualified than either successful candidate, the director reported discrimination internally and later filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission. Among other things, she alleged in the EEOC Charge that, after her internal report of discrimination, she experienced retaliation. For example, she alleged that he performance review scores went down, her workload increased, and some analysts no longer reported to her.
That’s not great. But, is it what the law considers “retaliation”?
What was an employer thinking fired a worker two days after complaining about “retaliation” and “harassment”?
On August 7, 2018, a worker sent an email. The email stated, “I fear retaliation” and “my colleagues and I have been the victims of continuous harassment, both sexual and emotional.”
On August 9, 2018, just two days later, the company fired her.
How do you think that turned out? Continue reading
He got fired after threatening to complain to HR. Could that be retaliation?
The plaintiff in this federal court decision I read last night didn’t exactly come off as a model employee. Continue reading
Would you stop emailing and texting? Just pick up the damn phone for once instead!
If, like me, you deal with HR compliance and employment law issues regularly, you’ve yelled the title of this blog post at others.
(And if you don’t deal with HR compliance and employment law issues regularly, dude, WTH are you doing here?) Continue reading
Rarely, futility and fear of retaliation excuse an employee from complaining about harassment. Here’s one.
When a plaintiff sues, alleging a supervisor subjected them to a hostile work environment, the defendant may avoid liability — even if the harassment actually occurred — if it took prompt remedial action to protect the plaintiff. Also, if a plaintiff fails to take advantage of corrective opportunities the defendant provides, the defendant wins.
But not always. Continue reading
Wait, what? Court says ‘good fit’ isn’t necessarily code for discrimination or retaliation.
Employment lawyers and HR professionals generally preach that employees view “it’s not a good fit” to explain their termination of employment as code for discrimination or retaliation.
It’s HR101.
But yesterday, a federal court of appeals explained that this well-intentioned but often misconstrued rationale isn’t always a thinly-veiled, pretextual excuse to fire someone. Sometimes, people aren’t “good fits.” Continue reading