If Discrimination and Harassment Don’t Get You, Retaliation Will

Aggressive woman pointing and calling to man.

Two recent cases make clear that employers can lose for retaliation, even if they win on the original discrimination or harassment case.

In one case, a two-year employee heard a new supervisor make two sexually unwelcome comments to a subordinate. The employee was later questioned by HR about the incident, and within six weeks after she supported the claim of harassment, she was written up twice and then fired. The sexual comments were not severe enough to violate the law of harassment, but the court of appeals held that it was still illegal to retaliate against her. (EEOC v. Rite Way Service (5th Cir 04/08/2016))

In the other case, a police officer filed a claim of discrimination. After that, she was ordered to attend training, then told she could not go to the training, and then criticized in front of her entire unit by her commanding officer for not attending the training she had been denied. The officer lost her discrimination case, but won on retaliation. (Ross-Paige v. St. Louis Metropolitan Police Department, et al. (Missouri Ct App 06/28/2016))

What this means to you: Once the words “discrimination” or “harassment” are uttered by an employee, management and HR need to be extremely cautious about what actions are taken and how the employee is treated on a daily basis. It’s not enough in these situations to talk to HR—the Legal Department may need to be involved. It’s better to be safe than sorry. Book our Managing Within the Law or Respectful Workplace workshop for your managers today.

Posted 07-12-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Rita M. Risser Chai is the founder of Fair Measures. An attorney in California for 20 years and now an attorney in Hawaii, she authored the Prentice Hall book, Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits. She developed most of the curriculum used by Fair Measures, created the firm’s first website praised in HR Magazine, and wrote numerous articles on employment law including one on best practice harassment prevention training published in the magazine of the American Society for Training and Development (now ATD). She taught Law and Human Resources at the University of California, Santa Cruz, for eight years, and has presented four times at the annual conventions of the Hawaii Society of Human Resource Management.