Dive Brief:

• A federal jury found that IBM unlawfully fired a sales manager who complained that race discrimination accounted for the significant difference between a Black salesman's commission and a White salesman's commission after both closed similar deals (Kingston v. IBM, No. 19-cv-01488 (W.D. Wash., April 15, 2021)).
• The plaintiff was awarded nearly $11.1 million on his claim of retaliation, wrongful discharge and unpaid commissions under Washington state law.
• "We are disappointed by the jury's verdict," an IBM spokesperson said. "IBM does not condone retaliation, race discrimination, or any other form of discrimination. The company is considering all of its options on appeal."

Dive Insight:

According to his complaint, the plaintiff flagged the disparity between the workers' commissions, telling an IBM manager that it "looked like discrimination." After this conversation, he was fired.

Experts frequently recommend that employers take all complaints seriously and follow up reports of misconduct with good-faith investigations. Some sources have suggested employers even embrace complaints. Holland & Hart Partner Brad Cave previously told HR Dive that employers should shift their mindset from defensiveness over complaints to one that encourages critical feedback. Such a change may encourage a culture of improvement.

Rather than make a whistleblower a "saint or a sinner," Ken Broda-Bahm, senior litigation consultant at Persuasion Strategies, said whistleblowers should be seen as regular employees who are doing their jobs.

Employers should train managers to field complaints without retaliation, as such a reaction can open the door to legal liability. It's illegal to retaliate against employees for engaging in protected activity and protected activity can include communicating with a supervisor or manager about potential employment discrimination, according to the U.S. Equal Employment Opportunity Commission. An employer cannot fire, demote, harass or otherwise take adverse action against an employee or applicant for employment for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. As long as the complaining employee was acting on a reasonable belief that discrimination occurred, their complaints are protected, according to the EEOC.

Of course, a complaint about bias or harassment doesn't insulate an employee from legitimate discipline. But if an employee has engaged in protected activity such as complaining about workplace racism or sexual harassment, then an employer should clearly document the facts that justify the discipline and clearly communicate with the employee, legal experts have said.