Workforce Management
An employee can win a retaliation claim even when he does not win the discrimination claim. The anti-retaliation law protects employees from negative consequences for complaining about discrimination, whether the complaint was justified or not.
By Mary Price Birk
September 2006
One of an employer’s hardest management dilemmas, because of the danger of retaliation claims, is when an employee who has made an EEOC claim, or filed a lawsuit alleging discrimination, still works for the employer. Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. It also prohibits retaliation against employees who file complaints of such discrimination.
Retaliation is any action by an employer that would have deterred a reasonable employee from making a claim of discrimination, had the employee known this action would be taken against him if he complained. An employee can win a retaliation claim even when he does not win the discrimination claim. The anti-retaliation law protects employees from negative consequences for complaining about discrimination, whether the complaint was justified or not. In addition to Title VII, there are many other federal and state laws that also prohibit retaliation.
Courts give employers little guidance about how to continue to conduct business normally when the complaining employee stays employed by the company. An employer may feel as if it is walking on eggshells when dealing with that employee, afraid everything it does will be misinterpreted as retaliation.
Unfortunately, there are some employees who try to work the system, knowing the predicament their employers are in when a complaint is made. In fact, some employees make claims of discrimination when they feel their jobs are in jeopardy precisely so that they have the protection of a possible retaliation claim when their employment is terminated or they are disciplined.
Even a simple decision like deciding which employees to put on a committee, or a decision on who should be given an assignment may be affected. Employers are fearful that not including the complaining employee will lead to a retaliation claim, even though the employee may not be the best choice for that committee or assignment for reasons that have nothing to do with retaliation. The employer’s fear may lead to the disgruntled employee actually receiving more favorable treatment than he would gotten had he not made a complaint.
Full Story: http://www.workforce.com/archive/feature/24/50/92/index.php?src=wfw090901b
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