Workplace Articles By BCC
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Additionally the court reasoned that even though White ultimately received back pay for the 37 day suspension, she lived without income for 37 days and did not know whether or when she would return to work. She obtained medical treatment for her emotional distress. The court stated, “A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former.” [Emphasis added by the authors.]
This case is an important reminder of how seriously courts, including the US Supreme Court, take the issue of retaliation. It is critical for managers to make sound, job-related business decisions and to ensure all employees know managers will take all complaints seriously.
In another case involving retaliation, Sylvester v. SOS Children’s Village Illinois, Inc., 7th Cir., No 05-4219 (July 12, 2006), the 7th Circuit Court of Appeals allowed an employee to proceed with a retaliation claim on the basis of circumstantial evidence showing her employer “set her up” to be insubordinate, making it easier for employees to prove retaliation claims (excerpted from HR News, SHRM).
Rosemary Sylvester and three other women signed a letter submitted to the chairman of the board of directors claiming the executive director, Job West, sexually harassed them by commenting on the sexuality of staff members and making sex-based remarks. The facts were insufficient to prove a case of sexual harassment. One of the board members characterized the letter as an attempt by two of the signatories to protect themselves from termination for poor performance.
The board fired both and considered firing Sylvester, who had a positive performance evaluation, shortly before. They decided they would wait until they saw Sylvester’s response to the news the two other employees had been terminated. The next day Sylvester was terminated for insubordination because she left a meeting in which Job West gave her the news of the terminations. When she asked West, “What guarantee do I have from you that you will stop talking to me in a profane, derogatory and untrue manner?,” he asked her to leave his office. Sylvester asked if legal counsel was present at the previous evening’s meeting. West responded, “Yes.” Sylvester then left the room and was immediately fired.
Sylvester filed a retaliation claim. The trial court granted summary judgment in favor of the employer. The court of appeals reversed, holding that Sylvester had enough evidence to prove retaliation, because a reasonable jury could conclude that she “was being set up.” The court concluded “that the defendant’s officers who met the night before knew she was sure to be upset by the firings, and that West was being invited to interpret that predictable reaction as insubordination.” The court held that less than “a rich mosaic” of circumstantial evidence is necessary to prove a direct case of retaliation. [Emphasis added by the authors.]
Courts are consistently ruling that the bar is being lowered on how much circumstantial evidence is necessary to prove a case of retaliation. In this case, George Kraehe, shareholder with Gilkey &Stephenson PA, commented, “Employers should not intentionally anger their employees and then fire them for getting angry.” Employers should consider the impact their decisions might have if they were to be examined under the scrutiny of a court of law and a jury of our peers.