Articles Posted in Retaliation

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What makes retaliation the most common discrimination claim in America?

I suspect it’s because other forms of discrimination (e.g., race, gender, disability) are more difficult to prove and don’t always result in an adverse employment action, such as termination of employment. And since most people like to keep their jobs, they’re more reluctant to rock the boat.

Conversely, retaliation always includes adverse action — quite often a firing — and follows what the law terms a “protected activity” (opposition to discrimination or participation in the statutory complaint process). So, you have a situation where an employee suspects discrimination is afoot, complains about it, and then gets fired. 

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In Centucky Kentucky, it’s not retaliation to fire employees who complain about sexual favoritism.

Then again making apple-pie moonshine and using a butcher cleaver to slice off the arm of a Detroit gangster isn’t frowned upon either. At least, that’s what watching Justified teaches me.

But even in Kentucky, they have laws. No, it’s true.

After the jump, you’ll see a KY federal court’s rationale for the latest sexual-favoritism ruling. And I’ll provide some tips for dealing with employees who complain about cushy assignments given to employees who get freaky with management.

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Sounds like a bad batch of Pennyroyal Tea. Just another Tuesday here at the ole Handbook.

<div style=”text-align: right;”>The San Francisco Chronicle is reporting here that Courtney Love, Kurt Cobain’s widow, is reuniting the band ** thank you for sparing our ear holes ** being sued by a former assistant seeking, among other things, unpaid overtime. The plaintiff also claims that Love asked her to perform voodoo rituals ** not yet, next paragraph ** unethical duties such as hiring a hacker and forging legal correspondence. The San Francisco Employment Lawyer Blog has more on this case here.

From Hole to holes in a doll pin-cushion, with a hat-tip to @ChaimBook, the Madison St. Clair Record reports here that a Wisconsin woman is suing her former employer for sexual harassment and retaliation. The plaintiff claims that she was forced to look at nude female magazines, calendars and sexually explicit language used by her co-workers and direct supervisor. Fairly standard sexual-harassment fare. What makes this case blogworthy is that, after she complained, the plaintiff allegedly suffered retaliation in the form of two voodoo dolls in her desk, one of which had a black pin stuck into her chest.

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illustration_view-people-magnifierIf an employee complains that her supervisor is sexting her, making unwelcome physical contact, and telling her that she can get a better work schedule in exchange for “small favors,” you better damn well investigate that!

Ignore it and you risk losing a valuable defense to sexual harassment claim. This is because, generally, to avoid liability for sexual harassment, an employer must demonstrate that it undertook reasonable care to prevent and promptly correct harassment.

But the failure to investigate could cost an employer even more. Like a dead-to-rights retaliation claim too.

Really? Retaliation too? Yes. I’ll explain after the jump…

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moneyBilled as a way to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, the Paycheck Fairness Act, did not make it out of the Senate yesterday. The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, eight votes shy of the 60 votes necessary for cloture. The vote came down strictly along party lines, with the two independent senators voting with the Democrats and Sen. Mark Kirk (R-Ill.) not voting. Senate Majority Leader Harry Reid (D-Nev.) changed his vote so that he could bring the bill up again.

In other news…

  • The Eleventh Circuit Court of appeals ruled on Monday that Title VII of the Civil Rights Act of 1964 permits claims for retaliatory hostile work environment. The decision brings the Eleventh Circuit in line with everyone else.
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A long-time county employee in Florida, who served as HR Manager, is set to file a federal discrimination complaint against her former employer, claiming that she was sexually harassed at work and later fired after complaining. The employer claims that it fired the employee for making false sexual discrimination claims to the U.S. Equal Employment Opportunity Commission.

And then there’s the porn and dirty texts…which the employee’s boss admits sending…to the employee…like 40 times…

Interest piqued? I thought so. Click through…

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A recent survey by Workplace Options, shows that most Generation-Y employees believe that an office romance will have a positive influence on performance and overall workplace morale.

Sounds like a Cialis commercial.

Who says I need to wait for Valentine’s Day for this post? Losers, that’s who. Lock the broom closets and click through for more on this survey and ways to address the office romance…

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Workplace retaliation was the last thing on the mind of Cobra Kai Sensei John Kreese when he told Johnny to sweep the leg.

Similarly, workplace retaliation was likely the last thing on the mind of the defendant-employer, in Thompson v. Morris Heights Health Center, when it sent out a late COBRA notice to the plaintiff, a former employee that had filed a Charge of Discrimination with the EEOC. The court held that an employer is not liable for retaliation where the employee: (1) received the opportunity to enroll retroactive to the date the employee’s health insurance ends, (2) turned down COBRA in favor of Social Security Disability benefits, and (3) did not seek subsequent employment.

And now that we have that clear…

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Hobson's Choice Victorian punchA maintenance mechanic in Illinois received 28 disciplinary-action forms from his supervisor. Ultimately, he was offered two choices: (1) accept a demotion to a non-mechanic position and take a significant pay cut; or (2) keep the position, fight the discipline, but face potential termination.

On the advice of his union representative, the mechanic took the demotion. He later sued for retaliation, claiming that the demotion, which he voluntarily accepted, was a direct response to a charge of discrimination he previously filed with the EEOC.

Is this retaliation? A federal circuit court gave us the answer yesterday. And I have it for you after the jump…

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Frozen Food AisleI’ve come up with some pretty creative defenses to unlawful harassment. Usually, however, before I file a pleading, I take out my trusty red pen iPad and delete those arguments that are just so outrageous that I feel my client will lose credibility with the court.

But that’s just me.

After the jump, I have a recent federal-court decision in which a Maryland grocery claimed that the [alleged] relentless sexual harassment of a female employee by the store’s male manager wasn’t “sexual harassment” — that would be illegal. Rather, it was “exotic dancer” harassment.

That’s pretty creative, alright.

Oh boy…

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