Dive Brief:

• Nevada's Clark County School District had legitimate, non-discriminatory reasons for taking adverse employment actions against a school teacher who fell asleep in class, the 9th U.S. Circuit Court of Appeals held, declining to revive the employee's disability discrimination suit (Annenberg v. Clark County School District, No. 2:17-cv-03090 (9th Cir., June 19, 2020)).
• The teacher had sued the district, alleging, among other things, that she was given a warning and a sub-par performance review in retaliation for an earlier disability discrimination complaint. A lower court granted summary judgment for the employer, finding that these didn't rise to the level of actionable "adverse employment actions."
• The appeals court affirmed summary judgment, but on other grounds. The review was an adverse employment action, it said, because it even thought it didn't necessarily alter a term or condition of employment, it would deter a reasonable employee from engaging in the protected activity. The employer, however, offered legitimate, non-discriminatory reasons for its actions: it submitted evidence that the employee had fallen asleep during class and exhibited several other performance deficiencies. 

Dive Insight:

When workers complain about discrimination or harassment or participate in an internal investigation into alleged misconduct, they are engaging in protected activity. And most of the nation's employment laws — including Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Americans with Disabilities Act and the Occupational Safety and Health Act — forbid retaliation against workers who engage in such activities. 

In spite of that prohibition, retaliation complaints are a common occurrence, according to the U.S. Equal Employment Opportunity Commission.

To avoid just allegations, employers can train managers on the laws' requirements and on documentation best practices. For example, once an employer knows or should have known that a worker engaged in protected activity, it's important that "retaliation red flags" such as increased supervision, highlighting alleged performance issues or increased work standards or expectations be avoided, experts previously told HR Dive.

Employers should also know that workers can prevail on a retaliation claim where discrimination has not been proven. Last year the 6th Circuit let stand a jury's finding that an African American Cleveland police officer was subjected to retaliation but not discrimination. Similarly, 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. The court said that while her allegations were not legally actionable because they were petty slights, her claim that she was forced to work through her lunch hour after she complained of sexual harassment was enough to sustain her retaliation claim.

However, protected activity doesn't insulate workers from legitimate discipline. But because timing alone can establish a prima facie case of retaliation, thorough documentation is key in avoiding and defending retaliation claims, experts say.