Dive Brief:

• Damon Stepp, an African American "temporary employee" of a medical test kit manufacturer, claimed he was denied a permanent position after he complained about the mistreatment of certain lab workers, court documents said. He presented enough evidence of retaliation to allow his claim to proceed (Stepp v. Covance Central Laboratory Services, Inc., No. 18-3292 (7th Cir. July 26, 2019)).
• The lab generally made temp workers with good performance records permanent between four and nine months after hire, and it followed this process with two other workers hired just before Stepp. Court documents noted that Stepp had received positive performance reviews during his first nine months. The "only material difference," according to the 7th U.S. Circuit Court of Appeals, was that Stepp had filed charges of discrimination with the U.S. Equal Employment Opportunity Commission about his team leader within that time frame. Stepp later was told by a supervisor that the lab did not make him permanent because the team leader had complained about him.
• A reasonable jury could find that the lab did not promote Stepp to a permanent position in retaliation for his complaints about discrimination, especially since the adverse action was "virtually contemporaneous" with the protected activity, the 7th Circuit said. There was also evidence that other, similar co-workers were treated better. Finally, the lab's stated justification for the adverse action — a hiring freeze — was unconvincing because the freeze took effect two months after Stepp's nine-month mark. Accordingly, the 7th Circuit reversed a ruling of summary judgment in favor of the lab and allowed Stepp's retaliation claim to proceed.

Dive Insight:

This case highlights many of the factors courts look at when evaluating whether illegal retaliation or discrimination may have taken place. A close relationship in time between the protected activity and an adverse action can help support a finding of unlawful retaliation or bias, along with an absent or unconvincing reason for the decision. Also, as this court mentioned, better treatment of similarly situated colleagues can be suggestive of illegal retaliation or discrimination. 

In one recent case, inconsistent reasons given for a worker's termination helped support the worker's claim of race bias. In another case, an employee's history of positive performance reviews helped keep her Americans with Disabilities Act (ADA) claim alive.

Timing, as mentioned above, can be a crucial factor in defending a bias or retaliation claim. Documentation is another key factor: It should be detailed, contemporaneous and free of legally conclusory or snarky comments.

Additionally, according to Allison West of Employment Practices Specialists, employers should always remember that jury members tend to be current or past employees who will bring that perspective into their decision-making.