Search
The Employer Handbook BlogFiring an employee for complaining on Facebook about discrimination = retaliation
And when the employer practically admits as much at a deposition = hella-stupid retaliation
Articles Posted in Retaliation
Can a company fire its HR Manager for taking the employee’s side in a discrimination complaint?
Well, you can forget about that “place at the table.” That’s for sure.
***ducks thought-leader mashed potatoes and change-agent stuffing***
The latest NLRB decision could provide many fired employees with a huge second bite at the apple.
In a decision issued last week (here), the National Labor Relations Board ruled that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7 [of the National Labor Relations Act].” So, for example, if you fire someone for filing a Fair Labor Standards Act lawsuit on behalf of himself and other similarly situated employees, then you’ve violated both the FLSA and the NLRA.
Yes, if an employer actually retaliates in that manner, shame on the company. However, two things pique my interest here:
- An administrative law judge concluded that the employee was fired because he filed a FLSA collective action. By this time, in the federal court action, the parties had barely scratched the surface on taking discovery and the federal court had yet to certify a class. (Ultimately, the FLSA action was settled amicably in federal court, without any finding of liability).
How 2 racial slurs in 24 hours can create a hostile work environment
Last year, I channelled Bill Clinton in this blog post about how courts rarely recognize a single incident or two as creating what the law deems a hostile work environment.
Yeah, about that.
Even a few isolated comments can create a hostile work environment.
In Boyer-Liberto v. Fontainebleu Corp. (opinion here), the full panel of the Fourth Circuit Court of Appeals concluded that two aggressive racial slurs made to an employee within a 24-hour period, may create a hostile work environment. (Here, the plaintiff, who is African-American, was twice called a “porch monkey.” And, each time, the harasser threatened the plaintiff).
OMG this supervisor’s responses to sexual harassment complaints
Folks, let me give you a little free Friday HR pro tip:
If a female employee complains to a female manager that another male manager is sexually harassing her, it’s not ok to for the female manager to respond thusly,
“He’s a guy and you work with guys. Ignore it and smile.”
That’s bad. Worse than pooping on a warehouse floor. (Even worse with the music I selected)
Continue reading
Protected conduct “can be as simple as telling a supervisor to stop.”
When I think about retaliation, I think about that time I plastic-wrapped the judicial toilets after losing a motion to compel an employee who gets fired after complaining about discrimination to an HR Manager or the EEOC. These actions epitomize the “opposition” and the “participation” clauses of Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute.
By what about when an employee doesn’t go to HR, doesn’t complain to the EEOC, but, instead, simply tells a supervisor to stop sexually harassing her? If that employee is later fired, and she can establish that she was fired because she told her supervisor to stop, is that a winning retaliation claim? Continue reading
Dude, you were fired for fellatio jokes, not your disability.
Geez! What’s gotten into me this week? Even by The Employer Handbook editorial standards, which are lower than Title VII’s religious accommodation undue hardship test.
[I’ll be here all week. Sorry.]
First, a 1000+ word blog post on ADA telework, followed by two cheeky posts on bad interview questions and the FMLA. So, naturally, this builds up to a Thursday post about oral.
As I resist every urge to cheapen this further by resorting to silly puns and other double entendre, allow me to set the stage for you: Continue reading
Can you smack your sexual harasser, complain, and still claim retaliation?
Not exactly a happy workplace trinity, but it’s what fuels The Employer Handbook. That and Jolt-Cola Bombs.
The plaintiff in this case claimed that she was sexually harassed by her male supervisor for over a year. The court’s opinion details alleged comments and groping in vivid detail. (No recap here. I plan to keep my post PG, damn it! Ok, PG-13. You happy, now?). Whenever the plaintiff supposedly complained, her employer did nothing about the harassment.
So, finally, she decked him one.
That got the employer to take notice. Indeed, it determined that the plaintiff had been sexually harassed and it fired her harasser. Then, the company also fired the plaintiff.
Continue reading
Apparently, in Texas, your managers are allowed one free “Heil Hitler.”
“I see your ‘two free slurs’ rule, Fourth Circuit Court of Appeals, and I raise you one shout out to the Third Reich, alright Hoss?”
Ok, you got me.
The Fifth Circuit, which covers Louisiana, Mississippi, and Texas, didn’t actually use those words, exactly. But, what the Court did say in this opinion, was that an employee who complained to Human Resources about a Deputy Director, one who allegedly said “Heil Hitler,” could not reasonably believe that this single comment created a hostile work environment. Got that? When a manager allegedly praises the Nazis one time, that’s not against the law:
Consider requiring your new independent contractors to release employment claims
What the hell are you talking about, Eric? Why would we make an independent contractor sign a release of employment claims before starting work for our company?
So glad you asked. Although, I’m not sure I like your tone.
*** takes pills ***
Many years ago, Allstate Insurance restructured its business, where it decided to longer have employees; only independent contractors. So, it offered its employees a bunch of options. One option was a severance; another was the ability to convert to independent contractor status. Either way, the individual had to release all past and presented employment-related claims agains the company.
When the EEOC got wind of the conversion option, they cried retaliation.