It’s Not Over When It’s Over – Retaliation Matters

Fran S.

Fran S.

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Following an investigation that took several months, and created a lot of bad feelings in the workplace, Frank, the manager of the Sales group decided to pull everyone together.

“It’s been a rough winter for all of us, ” said Frank. “A lot of people are feeling badly and we’ve lost a few good people. It’s time to pull together as a team and be positive.”

As a murmur began amongst his team, Frank held up his hand and looked directly at a group sitting together towards the back of the room — the individuals who had filed the complaint that spurred the investigation. He stared directly at them, and his voice became stern.”And let me be clear, right now. There will be no more complaints. If you’ve got a problem, either keep it to yourself or fix it. No complaints. Am I understood? ”

Retaliation? Up until recently, there was ambiguity about whether or not these kinds of actions were retaliatory. After all, they were just words, and no one had been demoted, fired or had their jobs altered. Doesn’t retaliation mean that the terms and conditions of employment have been affected?

This past summer, the United States Supreme Court heard a claim by Sheila White, a forklift operator for Burlington Northern & Santa Fe Railroad Company. (BNSF) White was the only female in her department and had complained about harassment by her supervisor. BNSF responded to the complaint by conducting an investigation and then suspending the supervisor for ten days, also requiring him to attend sexual harassment training. The roadmaster, who managed the worksite, informed White of the discipline to her supervisor, and immediately assigned her to a less desirable position, stating that “a more senior man” should have her job since it was less arduous. White filed a complaint of retaliation with the EEOC, and then filed another claiming that she had been placed under surveillance and that the roadmaster was monitoring her daily activities. Several days later, after a disagreement with her supervisor, the roadmaster suspended White without pay for insubordination. She was suspended for 37 days before an internal grievance process determined that she had not been insubordinate and reinstated her with back pay. White filed a third retaliation charge with the EEOC based on the suspensions.

The Supreme Court heard this case because there were a variety of tests being applied to determine whether the Title VII prohibition against retaliation for reporting workplace discrimination had been violated. The court’s holding is important for employers to understand. Unlike Title VII’s anti-discrimination provision, which involves actions that affect the terms and conditions of employment, the Supreme Court found that the anti-retaliation provision is not limited to actions affecting employment terms and conditions. Rather, they found that the provision is intended to prevent employer interference with an employee’s capacity to seek help from the EEOC, the employer, and the courts. The Court reasoned that the Act prohibits any “materially adverse” action that would dissuade a reasonable employee from reporting or filing a complaint of discrimination. While the court reiterated it’s prior findings that employees who complain cannot be immunized from “petty slights or minor annoyances,” it emphasized that context is important — for instance, that “a schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.”

Clearly, the standard for finding retaliation has become more lenient, and employers must take seriously the need to train supervisors and managers now that the bar has been lowered. Now, even without direct action such as demoting or suspending an employee, any action that an employer takes which could dissuade an employee from feeling comfortable making complaints can create exposure.

So, what about Frank? Certainly, he did not directly threaten the complainants, nor did he take “materially adverse” action — yet given the context of his remark, his employer certainly would have a good deal to worry about. It would be difficult to argue that Frank was not dissuading these employees from complaining about future problems.

Supervisors and Managers must understand the need to encourage, not discourage employees from raising concerns, and to refrain from expressing their personal feelings about the employee’s choice to do so. When someone has made a complaint, supervisors and managers should be encouraged to take steps to normalize the work environment as much as possible and to articulate support for the organization’s policies and practices. Those who do otherwise can easily put the organization in harm’s way.

“First Responder” training helps Supervisors and Managers to respond to employee complaints in an effective manner while reducing the probability that the employee will ultimately bring a claim against the employer. By putting the complaint process in a helpful light, it orients supervisors and managers to be supportive of the complaint management process, including maintaining a neutral and calm environment during investigations and helping to normalize the work environment after an investigation.

 

Fran S.

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