Suppose you have two family members working for you – husband and wife or parent and child, for example. One of them makes a discrimination complaint. Then a month later the other one does something that gives you a good reason to fire that person.
No problem, right? It’s only retaliation if you punish the person who complained, right?
Not right, the Supreme Court has just ruled.
All in the family
Deciding a case that’s had more legal spins than a merry-go-round, the high court said retaliation can occur if an employer takes adverse action against one family member after another has engaged in protected activity. Protected activity, of course, means complaining of discrimination or harassment, acting as a witness for a third-party complainant, or refusing to carry out a discriminatory order.
The court’s reasoning was simple: The whole legal theory of retaliation is an attempt to protect employees from being intimidated by employers who want to quash their legal rights. And any reasonable employee would be reluctant to complain of discrimination if he or she knew the employer would then discipline or otherwise punish a family member.
His and hers complaints
The case, Thompson v. North American Stainless LP, involved a woman who made an official complaint of sex discrimination and her fiancé, who worked for the same company. (The two have since married.) Shortly after the company learned of her complaint, it fired the man.
He sued for retaliation. A lower federal court said he had a case and the Supreme Court agreed.
Going too far?
Justice Antonin Scalia, who wrote the court’s opinion, acknowledged that the principle involved – that is, that employers can commit retaliation by acting against someone important to a complainant – could open a Pandora’s box of litigation.
What about firing an employee’s close friend or trusted co-worker? he asked. Or what if a stockholder was unhappy about a drop in the company’s stock price after it fired a key employee for discriminatory reasons? Could the stockholder make a case of retaliation?
Justice Scalia didn’t try to answer all the questions. But luckily for those in the HR world, he suggested some lawsuits in this vein might be a case too far. Firing a close family member can amount to illegal retaliation, the justice said, but “inflicting a milder reprisal on a mere acquaintance will almost never do so.”
Pro-employee rulings, and what to do
This is just the latest in a series of decisions the high court has made in recent years shoring up, or even expanding, employees’ rights to be free of retaliation.
In light of these rulings, savvy HR folks will want to be extra careful that:
- Every employment decision is backed up by documentary proof. This will help defuse employee arguments that adverse action was retaliation rather than good personnel management
- Discipline against employees who have recently complained of discrimination – or whose relatives have – is particularly well documented.
- Managers check with you before taking disciplinary action. You may know about protected activity a manager is unaware of.
- Managers don’t “accidentally” retaliate against an employee by altering their work conditions in a way that might seem innocuous but create a hardship – a schedule change, for example.
- No “bad actors” are involved in discussion of possible action against an employee who has engaged in protected activity. This could be a supervisor who nurses a personal grudge, for instance, or a manager who doesn’t like the employee’s politics. People like this can create an impression that otherwise-justified discipline had a retaliatory undertone.
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