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.

For example, the plaintiff alleged that her supervisors “were harsh with her and yelled at her.” Sure, that’s not nice. But a simple lack of good manners routinely falls short of “materially adverse.”

However, the plaintiff also argued that she suffered an adverse action when her supervisors repeatedly scheduled meetings to force her to work through her lunch hour despite knowing that the plaintiff needed to maintain a specific lunch hour to prevent migraines.

Causing the plaintiff to go hungry and endure physical pain seems harsh. But let me explain why the court dismissed her lawsuit anyway.

First, of the meetings the plaintiff claimed she had to attend instead of her scheduled lunch, two were scheduled by a coworker whom the plaintiff did not allege to have any role in a retaliatory scheme.

Second, several others were large team meetings with over fifty other invitees; i.e., they didn’t center around the plaintiff.

Third, the plaintiff provided insufficient evidence for any reasonable person to conclude that her supervisors generally knew about her need to eat lunch at a specific time or her medical needs. Consequently, they could not have intended to retaliate by scheduling lunch meetings.

Finally, employees could and did eat during these meetings.

Antidiscrimination laws, like Title VII, prohibit retaliation against employees complaining about discrimination. But these statutes are not general civility codes. Petty slights and minor annoyances, while unfortunate, are not actionable.

“Doing What’s Right – Not Just What’s Legal”
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