Retaliation Scenarios
Informal ComplaintEmployee F is the only female director in her department, and at the staff retreat last week, all directors except Employee F presented goals and vision for their respective divisions for the upcoming year. The head of the department, Employee H, presented the goals and vision that he developed for Employee F's division. When Employee F asked why she was not given the opportunity to develop her own goals and vision, Employee H said he did not think she should devote her time to that because she had other looming deadlines. Employee F told the supervisor this was unfair and pointed out that she is the only female director, and she was the only person not granted the opportunity to develop and present goals and vision for her unit. This week, two of Employee F's direct reports were informed by Employee H that they will have a dual supervisory line to both Employee F and Employee M, who is also a director. Employee M will be overseeing the budget for Employee F's division, as well. Employee M and the other three male directors now have titles of Senior Director on the department's directory. AnalysisA person does not have to file a formal complaint to have engaged in protected activity. Employee F has notified Employee H that she believes the actions to be unfair and questions if it is because of gender. The shifts in supervisory responsibilities and budget management may have been planned well before the staff retreat, but sufficient documentation would be necessary to rebut the close temporal proximity of the adverse action not being caused by Employee F's engagement in protected activity. The title changes for the male directors, but not for Employee F may also be considered retaliation if it was something that was planned for Employee F and then pulled back. |
Petty Slight or Intentional ExclusionEmployee C filed a complaint because of the supervisor's failure to accommodate Employee C's observation of a religious holiday. While no formal investigation occurred, University Human Resources addressed the concern with the supervisor and resolved the issue to allow Employee C to use administrative leave instead of annual leave. For the last four weeks, Employee C has been left off of email exchanges between the supervisor and other colleagues on matters pertaining to Employee C's responsibilities. The supervisor has also scheduled "emergency" meetings twice in the last three weeks at 5:30 pm, when Employee C has caretaking responsibilities for his child. Employee C learned yesterday that the entire department went to lunch for a colleague's last day of work, and Employee C was not told about the plans. The supervisor said it was an oversight because they must have discussed it after the "emergency" meeting last week. AnalysisThe specific facts of this case require more inquiry. Information about the content of the email exchanges is important to know if it is something that Employee C could have weighed in on, but was not central to the decision making. Is there evidence that Employee C was inadvertently left off the chain as a result of another employee starting the exchange and the supervisor replying to the original message? This would also require that Employee C show how their exclusion from the email caused harm. With regards to the emergency meetings, if there is a non-discriminatory reason for the emergency meetings--e.g. evidence that there was time sensitivity to the matter at hand--then the meeting may not have been planned in an effort to purposefully exclude Employee C. Also, were there options available for Employee C to participate remotely or receive an email update of the meeting and chance to provide input? The lack of invitation to the colleague's lunch would also have to show there was harm, in the form of lost professional development or other work related decisions being made at the lunch. |
The Cat's PawEmployee D reports to the Office of Compliance & Equity that they are being sexually harassed by Employee Z, their second level supervisor. A week after the report was filed, Employee D's direct supervisor, Employee S, issues a performance directive to the entire staff that highlights a mistake that Employee D made over a month ago. Employee S also gives Employee D a counseling memo for tardiness because they arrived at 8:20 on Tuesday and Thursday this week. Employee D has routinely been late on Tuesdays and Thursdays because of caretaking responsibilities, but they either work through lunch or stay late to make up the time. The counseling memo states that Employee D did not inform Employee S that they were going to be late those days nor did they receive permission to make up the time by working through lunch. This is not something they have been required to clear with the supervisor in the past. AnalysisCourts have held that the "cat's paw" theory in discrimination and retaliation complainants where an employer can be liable for unlawful retaliation when the decision maker did not act with discriminatory or retaliatory motive if the decision maker was influenced by another employee who did have discriminatory or retaliatory motive. In the example above, if there is evidence Employee Z influenced Employee S to take adverse actions against Employee D, even if Employee S is unaware of the underlying complaint, then Employee D may have a complaint of retaliation for Employee S's actions based on Employee Z's motives. |
