Dive Brief:
- A dental supply company fired a Houston sales representative for reporting a manager’s discriminatory conduct the day after she complained to HR, the U.S. Equal Employment Opportunity Commission alleged in a Sept. 13 lawsuit (EEOC v. Dental Health Products, Inc., No. 22-00994 (W.D. Texas Sept. 13, 2022)).
- The sales representative noticed that her branch manager was reassigning her accounts to a male co-worker, according to the lawsuit. She explained this to the HR manager in an email and said she was filing a formal complaint. She also said the branch manager was creating a hostile work environment and discriminating against her because she is female. The HR manager fired her the next day, the lawsuit alleged.
- The EEOC sued the company for retaliation under Title VII of the Civil Rights Act of 1964. “A manager may not fire, demote, harass or otherwise retaliate against an individual for filing a complaint of discrimination,” EEOC attorney Philip Moss said in an agency release. EEOC Regional Attorney Robert Canino added that employees may avoid reporting discriminatory conduct if they learn co-workers have suffered an adverse action for doing so. He said the EEOC focuses “on thawing that chilling effect.” Dental Health Products did not respond to a request for a comment before press time.
Dive Insight:
Employees who engage in protected activity — like filing a discrimination complaint with HR — can still be disciplined or discharged if the adverse action is taken for “non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences,” EEOC guidance emphasizes.
But when discipline follows protected activity, HR has to be careful about two factors. Timing is the first: Discipline that follows suspiciously close in time to the protected activity can be evidence of retaliation, according to an EEOC FAQ. The lack of supporting documentation can also suggest retaliation, the guidance says.
In 2020, a Tampa firefighter lost his retaliation claim because he couldn’t show either. He was discharged after filing two EEOC complaints, but he wasn’t fired until eight months after he filed the second charge, the 11th U.S. Circuit Court of Appeals noted in upholding judgment for the city, HR Dive reported. The firefighter was also repeatedly warned about his attitude, behavior and attendance, the court said.
Experts previously spoke to HR Dive on how to minimize the risk of discrimination complaints. Relevant to curbing allegations of retaliation, employers should provide employees with a meaningful complaint and investigation procedure, an HR consultant noted. And to protect the employer, the investigation should be thoroughly documented, an attorney added.
Beyond the legal issues, ignoring or mishandling misconduct complaints creates another worrisome problem: It tells employees that such behavior is tolerated and depletes their trust in HR, HR Dive has reported.
To combat such claims, HR can insist on a standardized procedure that requires action on its end, an exec said. This way, HR can build trust through investigating complaints.
Remote workplaces create new sources of discrimination and harassment, HR Dive earlier reported. Providing employees with a means for open communication, like a chat room, so they can connect with a manager at any time, helps halt actual or perceived misconduct in a remote work environment, the exec told HR Dive. The more employees can talk with a manager, the less likely things will spin into an issue, she said.
