Dive Brief:

• A long-time Cleveland policeman was subjected to retaliation when he was assigned to desk duty after he complained of racial discrimination in a promotions test, the 6th U.S. Circuit Court has ruled (Barrow v. City of Cleveland, No. 18-3665 (6th Cir. May 7, 2019)).
• Jerome Barrow, who began working for Cleveland's police department in 1979, sued the City of Cleveland and several of his former supervisors alleging that they retaliated against him for filing a charge of racial discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). When Barrow failed a test to become a captain in 2011, he filed a charge with the EEOC alleging that the test was racially discriminatory. Barrow said that, after filing the charge, the city retaliated against him by denying him opportunities for overtime, took away an assigned work vehicle, assigned him to a desk job and forbade him from having contact with the public.
• The city appealed the district court's decision for Barrow, but the appellate court affirmed its original ruling. "This type of reassignment 'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,'" the court said.

Dive Insight:

Of the 76,418 workplace discrimination charges workers filed with the EEOC in 2018, more than half were retaliation charges. It's important for employers to train managers to proceed with extreme caution after an employee submits a claim for discrimination — especially if supervisors are named in the complaint, experts previously told HR Dive. As in this case, courts have found evidence of retaliation even in instances where discrimination has been ruled out. 

In Collymore v. City of New York, a female African-American plaintiff didn't win on her charges of sexual harassment and race discrimination, but an appeals court said her retaliation claim could move forward. Her allegations — which included vague claims of inappropriate touching, being yelled at, and closely scrutinized work — were "petty slights" that were not legally actionable, the court said. Being forced by her supervisors to work through her lunch hour after she complained of sexual harassment (despite their knowledge that she needed to eat at a certain time to prevent migraines), however, was enough to sustain her retaliation claim.

In another instance, Anderson v. Brennan, Postmaster General, the 1st U.S. Circuit Court of Appeals ruled that the firing of a long-time postal police worker for sleeping on the job was retaliation for her discrimination complaint.

Experts have recommended that training for managers and supervisors include an anti-retaliation component. If an employee has engaged in protected activity and discipline ensues, it's especially important for managers and supervisors that there be a clear record of facts to justify any disciplinary action, that documentation supporting the discipline exists and that managers and supervisors be aware that timing alone can establish a prima facie case of retaliation, attorneys have previously told HR Dive.