The Employer's Legal Resource: HR Did What?! . . . A Recipe for a Home-Run Retaliation Claim
Wanna cook up a great, high-dollar retaliation claim? Here's a winning recipe one Texas company dished up:
Have HR tell a couple of minority new hires they are being paid less than others doing the same job
When they ask their supervisors about it and about a raise, transfer them to the all-minority crew
When they continue to ask about it and whether it is race-related, fire them without following normal procedures
When they file charges of discrimination with the EEOC, have the HR manager drop notes in their files that say, "not eligible for rehire ever. Tried to sue us."
And for a cherry on top, go back and doctor the termination documents with white-out.
Yes, this is a true story. Yes, HR really did these things and allowed these things to happen. And, yes, the employer, A & L Industrial Services, Inc., actually took the case to trial-in front of a jury.
A & L received a jury verdict declaring it had successfully concocted a winning retaliation recipe. The prize: A & L must pay the former employees back pay, compensatory damages, front pay, and punitive damages.
Interestingly, A & L actually persuaded the jury it did not discriminate against Shedrick Oatis and Willie Smith in regard to their pay. But, the jury found A & L retaliated against Oatis and Smith for voicing their questions and complaints about the apparent race-based pay discrepancy.
A & L may have fared better on the retaliation claim if it had done things differently. If A & L had not reassigned the guys to an all-minority crew after they began to raise questions, then their case might have been stronger. If A & L had documented legitimate, non-retaliatory reasons for reassigning them to the all-minority crew, that would have helped, though the fact they maintained what employees admitted to be an all-minority crew is itself troubling to say the least. If A & L had followed its published disciplinary procedures prior to terminating Oatis and Smith, their case would have been much better.
Instead, A & L failed to document various occurrences of poor performance and insubordination that allegedly resulted in the terminations. If the HR manager had not put notes in the personnel files of Oatis and Smith, declaring them ineligible for rehire because they "tried to sue us," then Oatis and Smith would have had a more difficult case and likely would not have recovered punitive damages.
When employees make good faith internal inquiries or complaints about perceived discrimination, exercise extreme care in how you respond. Investigate the matter thoroughly. Document the investigation, its findings, and conclusions well. Make sure processes and safeguards are in place to adequately ensure that no materially adverse employment actions are taken against the employee without first taking reasonable steps to put yourself in a position to demonstrate that employment decisions were based exclusively on legitimate, non-retaliatory reasons.
By Christopher S. Thrutchley, firstname.lastname@example.org