First glimpse at new High Court ruling on retaliation

May 29, 2008 by Jim Giuliano

Posted in: Complaint investigation, Employment law, In this week's e-newsletter, Latest News & Views, Race discrimination, Records documentation

The Supreme Court’s ruling that retaliation rises to the level of discrimination has employers scrambling to figure out the effects in the real world. Let’s look at the particulars:

The case
Actually, there were two cases, but the main one - CBOCS West v. Humphries - involved a black assistant manager at a Cracker Barrel restaurant in Illinois. He had complained about racist remarks and unfair treatment, and eventually was fired by a supervisor alleging poor performance.

The employee sued, charging he was fired for complaining, not for performance reasons. And he insisted that retaliation for complaining about discrimination is part of discrimination itself and should be treated that way in the courts - as a violation of federal law.

The employer argued retaliation isn’t mentioned specifically in laws barring discrimination, so an employee can’t tie the two together.

The ruling
In a 7-2 opinion, the court agreed with the employee. In the wording of the majority opinion, retaliation is “embedded” in discrimination, making the two offenses the same, and subject to federal-court rulings.

The effect
Few employers set out to intentionally retaliate against employers who file complaints, so what’s the big deal?

The deal is that you can find yourself defending against a federal-level lawsuit for the appearance of retaliation after a discrimination claim. And that means even greater risk for employers whose managers don’t document properly.

Imagine, for instance, a difficult employee who files a frivolous discrimination complaint and then performs poorly. If you try to discipline that employee for the performance, you’re going to hear a scream of “retaliation” if the performance isn’t documented.

A lot of employees and employment lawyers have figured out the tactic already: The EEOC reports that the number of retaliation complaints has doubled in the last 15 years.

Click here for more details about the case.

Tags: cbocs west v. humphries, cracker barrel, discrimination, retaliation, Supreme Court

One Response to “First glimpse at new High Court ruling on retaliation”

R. B. Says:
August 25th, 2008 at 12:19 pm
I wonder if the number of complaints are up because the incidents of retaliation have significantly increased or are the incidents fairly steady, but more employees now recognize their rights, so are filing more complaints? Or is it a combination of both? Having been a victim of retaliation who didn’t file a complaint and also being an HR professional, I can certainly see how both could play a part in accounting for the increase. I have always abhorred any kind of retaliation, discrimination or unethical behavior. I have become very frustrated with the fact that it’s far too prevalent in the business world. Perhaps I’m naive, but it bothers me that so many companies applaud and condone unfair treatment of employees. I’m actually glad more people are finding their voice and complaining when they experience retaliation or discrimination because the only thing that gets a company’s attention enough to effect change is a big hit to the bottom line. A company should be held accountable if they are operating in an illegal or unethical manner.

Supervisors and managers must be trained and unfortunately, many companies don’t have the budget or ability to provide quality training in many critical “leadership” related areas. In such cases (where training isn’t possible), HR has to be involved heavily in all disciplinary events, even relatively minor ones, and that can be burdensome.

On the flip side, I have seen people with major performance problems demonstrate the uncanny ability to determine when they are about to be called into account for their poor performance. They file a complaint of some kind to try to dissipate or avoid discipline or termination. The key in such cases is to have documentation of the performance problem and that documentation must predate their complaint. Otherwise, you’re on thin ice if you try to suddenly begin a disciplinary campaign. This is why I always encourage managers / supervisors to deal with performance issues as they happen and I stress the need for documentation and witnesses to any disciplinary counseling sessions. If we are quick to provide correction and direction, document the events and treat employees with fairness and respect, the chances of a complaint ever being filed will be greatly reduced. And if a complaint is filed, we will know we have done right by the employee and won’t have anything to fear when called upon to defend our actions.