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

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 ambuiguity 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. For more information, go to Sepler & Associates web site or give us a call.

For the full text of the Supreme Court Decision, click on the link below.

Burlington Northern & Santa Fe Railway v. White

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2 Responses to It’s Not Over When It’s Over– Retaliation Matters

  1. Nice post, Fran. The example is great.

    My first impression is that the comment is NOT a “‘materially adverse’ action that would dissuade a reasonable employee from reporting or filing a complaint of discrimination.”

    However, could it be taken as an implied threat of termination? Is THAT such an action?

    The bottom line, which comes through between the lines in your post and I wish to state explicitly, is that the new standard is hardly a model of clarity. Like many Supreme Court decisions, this one raises at least as many questions as it answers.

    So as an employer you have a choice: you can risk becoming one of the hundreds of test cases that will trickle through the courts over the next 10-15 years before the standard is further fleshed out and clarified — or you can take Fran’s advice. I know what I’d do. . . .

  2. martha says:

    I was recently fired and I strongly believe due to my questioning of my former employers business practices. I had approached both the SVP and EVP on my concerns as well as questions. I managed a property for them, as well as lived in another property ( my salary was never a part of my rent, I was a resident long before I became an employee, and I had always paid full rent just like any other resident ).

    It started perhaps last Summer when I approached the SVP and was asking about my staff, pertaining to my maintenance guy at the property I managed for them, he also lived in another property they owned, he had infomed me that our employer had asked him never to clock in when he worked at a particular property on saturdays, it was apparently for his rent (he worked and paid for it) this concerned me (and him ) as I knew if he were to get injured on the job these were the kind of women who would deny he was working at that time, so I on several occassions I tried to ask what the deal was with him working at this property, I asked the SVP, I also told her that Tony had informed me that he did not clock in for those shifts, well, the SVP quickly replied that it was for his rent, there was nothing in writing that showed that he worked at this property on saturdays from the owners, we have no HR in our company so really I had no one to go to but to these women personally. There should be a law to force companies to have outside or in house HR support for employees, these women controled everything.

    I had done a review for my maintenance engineer last month, and when I turned it in the SVP did not agree with the score I gave him, she insisted that I lower it, I was his manager, it was my review of his performance in the last 12 rolling months, I told her that it was my review,I told her no, that if she wanted it lowered she would have to sign it herself, we went back and forth on this, ultimately we never completed his review, the SVP told me that Tony was not always on the straight and narrow before I had even started his review, she mentioned two incidents that happened several years ago (I have only been with the company since 11/05 ) , she was obviously trying to influence me to think less of tony, why would you tell me this? and when I was trying to prepare his review? I told her that what ever happened, happened long before I started with the company and I also told her that I did not like her influencing me, and that if the review score was changed I would not sign off on it, due to the fact that it would now be her review. I asked her to give me some reasons as to why she felt Tony’s score should be lowered, no good reason was given , she said that she thinks he needs development in a certain area and I felt he proved to me otherwise.

    Another concern, I had went home to for Thanksgiving and upon my return I came across some documents, actually, official 90 Days to Vacate letters that went out to my residents, the property I was managing is closing next month, so all the residents must get this official letter to let them know they must vacate, problem was, my name was typed on it and someone else had signed it, I sent an email to the EVP and SVP asking who signed my signature, and that I did not want anyone signing my name, that I prefer signing my own name, they never responded to the email.

    As recent as 2 weeks ago I again had approached the EVP about those letters that had gone out with my name on them, residents thought I created them, and had questions, on those letters were rental payment benefits that the resident would be entitled to since they had to move, due to the property closing the owners were responsible for assisting with rent for 42 months, the calculations were done by the EVP as well as the comps ( comparable (comps) apartments for each resident, they were given 3 comps each), the owners had to find 3 comps for each resident and the comps had to be even to what they (residents) had or greater, they could not downgrade the resident, EX: john had a studio that was $550, his comps were the following ….YMCA on the north side, YMCA on the south side, and a transient hotel out west, these were not acceptable comps, #1 they needed to find comps that were close in the area, #2 the YMCA had a community bath-John had a studio with its own bathroom thats not camparable to what he had, and #3 was the price, they were downgrading him due to the fact that these locations were $400 and less, so as you can imagine the residents did not like the choices they were given. I had communicated to the owners on many occassions that the residents were not happy with the choices they were getting, that they questioned the benefits the owners calculated for them, the residents felt that the owners did not care for them, and just wanted them out. It was ovious to me and the residents that the owners only cared about getting them all out.

    So, since my name was on those letters they were coming to me, I approached the EVP as recent as 2 weeks ago and stated that they think I created these letters, she in a very non chalant manner replied with “you did write them”, I quickly stated no that I did not write these, she then replied with “your name is on them, they think you wrote them”, I stated again, I did not write these, after that she continued with her work as if it were nothing. I was shocked and immediately called an aquaintance of mine who was familiar with this relocation, he works for the city in the department of planning and development, I told him what happened and he stated that I would not be held liable for this, that he has emails from the EVP it its clear that she wrote those letters, in his position he has to make sure that my former employers handle the relocation of the residents is done correctly, so letters and documents used for this project went thru him. I see how it works for them to use other peoples names.

    These women have very questionable business practices, and yes, I questioned some of them, however, I never thought that I would be fired, that was the last thing on my mind, last thrusday to my shock and surprise I was called into the office and fired on the spot, the SVP stated that she asked me to do some things and said I did not do them, and that they ( her and the EVP) were not happy with my performance and that it would be best that I found employment elsewhere, that was it for the explanation, I told them after all I had done for them, I had ran that property on a ghost staff!!! , the EVP immediately asked for the keys and my work pager, and then to make matters worse, they handed me a 30 days to vacate my apartment!!!! I lived at another property of theirs, I told them what did my apartment have to do with my termination??? they did not anwser why. All along they kept telling me that when the property closed down I’d have a furture still with them and have a new position at the main office, I kept that in mind as I struggled to run a property solo, and out of the blue they do this!!!!

    I feel that this company retaliated against me in the worst way, my questioning and the fact that I would not bend for them, my name was on those letters, for a project that they were funded over $600,000 for, monies that are state and federally funded , and I’m sure by trying to force residents to locations far cheaper than what they currently had, and the owners were told from the city to find acceptabe comparables shows they purposely went against those guidelines, and it puts more of that money in their pocket.

    I was also telling the SVP that I was stretched for months, last May my leasing agent was promoted, she was never replaced, at some point Tony (maintanance) was now working PT at my location hence leaving me even more short handed, the the SVP also fired my building monitor several months ago, I had to wear several hats and throw in the fact the we were now having to deal with a closing and responsible for relocating our residents, it was a lit of work, I repeatedly said it was difficult running that property solo, that I was pulled in a hundred directions, even though they sent some help a couple days a week, which was not consistent and eventually was no longer there, I had challenges that needed real support, I never got it.

    This whole thing is a nightmare, I feel my former employers retaliated against me in the worst way.

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