‘Just suck it up’: How NOT to respond to a bias allegation
The EEOC claims in a newly filed lawsuit that an Idaho employer responded to a bias allegation by telling the reporting employee to “be the bigger person” and then denying her a promotion.
The target of the new suit is Elevation Labs, LLC, which was formerly known as Northwest Cosmetic Labs.
The agency says Rachel Robertson Johnson began working at an Elevation Labs Idaho Falls location in 2014 as a cosmetic chemist – and was one of the employer’s few Black employees.
In 2016, the agency asserts, she went to HR with reports of racially insensitive remarks and unfair treatment from co-workers at the firm.
Bias allegation? Don’t do this
The employer’s alleged response? She “needed to be the bigger person,” the EEOC alleges.
About three years later, in February 2019, Robertson Johnson again went to HR with claims of alleged discriminatory treatment. This time, the employer allegedly told her “that her relationship with her co-workers and management had deteriorated to a point that prevented her from being promoted.”
Robertson Johnson later talked about the company’s alleged lack of diversity and inclusiveness at a company-sponsored diversity presentation. She happened to make those statements to a guest speaker at the presentation who was the brother of the CEO of Elevation.
When the CEO learned what Robertson Johnson said, he allegedly told her that she and the company would have to “part ways” if she did not stop making discrimination allegations. Managers allegedly admitted that she was not promoted because she complained of unfair treatment based on race.
Elevation then issued Robertson Johnson an unjustified written warning, the EEOC asserts, and she was forced to quit in September of 2019.
Title VII bans retaliation
The suit asserts a violation of Title VII, which bans the alleged retaliatory response to Robertson Johnson’s allegations.
The agency says it tried to resolve the matter via its conciliation process but was unable to do so.
As relief, the suit is asking for lost wages, monetary damages for emotional distress, punitive damages and injunctive relief.
“Employees with a reasonable belief that they face discrimination have the right to speak up without fear of losing a promotion opportunity or their livelihood,” said EEOC trial attorney Clive Pontusson. “The EEOC will vigorously defend that right and hold employers accountable when they take retaliatory actions.”
The suit was filed by the EEOC’s Seattle field office.
Key terms: ‘Protected activity’ and ‘adverse action’
When employees engage in what are known as “protected activities,” Title VII bans employers from retaliating against them for doing so.
What are “protected activities”?
Some examples, courtesy of this guidance from the EEOC :
- Filing an EEOC charge, or being a witness in an EEOC investigation
- Talking to a supervisor or manager about discrimination
- Refusing to follow orders that would produce discrimination
- Asking for a disability-related or religious accommodation
- Asking about salary information to uncover possibly discriminatory wages.
What specific types of retaliatory responses are prohibited?
The lawsuit provides one example: Denying promotion opportunities.
Other examples include:
- Giving the employee a bad performance review
- Transferring the employee to a less desirable job
- Verbally or physically abusing the employee
- Generally increasing the level of scrutiny applied to the employee’s work
- Making the employee’s job harder, such as by changing their schedule to conflict with family responsibilities.
These are all what are known as adverse job actions, and when they are taken specifically in response to protected activity, they are a big no-no.
Remember too that filing a discrimination claim does not insulate employees from the consequences of misconduct or poor job performance. Think of it this way: Would you have taken the adverse action if there was no discrimination allegation? If the answer is yes, then the adverse action is not retaliatory.
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