Victims of workplace discrimination and/or harassment are encouraged to file a complaint with their employer or a government entity, such as, the Equal Employment Opportunity Commission (EEOC). Filing a complaint is generally a prerequisite to pursuing a claim in state or federal courts.
However, filing a discrimination complaint can trigger a retaliatory response from the employer. In general, retaliation is an impulsive reaction by an employer to a discrimination/harassment complaint filed by an employee. The employer’s reaction to the employee’s complaint results in harsher treatment, which can include termination. Like discrimination, retaliation is illegal. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports…”); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (The evidence here showed that the administration intended to retaliate against Gowski and Zachariah because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them.)
While retaliation is generally impulsive, some employers are more calculating in the way they retaliation against employees. These employers use pretext (false justification) to hide their true retaliatory motive.
Like a spider and its web, these employers wait for the employee to make a minor mistake and then they use the employee’s minor mistake to falsely justify a severe retaliatory response, such as, a termination. Hamilton v. General Electric Co., 556 F.3d 428, 435 (6th Cir. 2009) (“…Hamilton alleges that the bosses heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful discharge by closely observing an employee and waiting for an ostensibly legal basis for discharge to emerge).”); EEOC v. Boeing Co., 577 F. 3d 1044, 1050-3 (9th Cir. 2009) (“…after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated. These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002.”)
In court, most employers use pretext as a standard defense against an employee’s claim of retaliation. An employee with a record of satisfactory job performance will suddenly be accused, by their employer, of poor job performance or serious misconduct. Often, this defense ploy lacks credibility on its face.
Courts recognize that employers use pretext to hide their true retaliatory motive. With this in mind, employees may prevail in court by proving that their employer’s justification is false and retaliatory. An employee’s record of satisfactory job performance or good conduct often speaks for itself. (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”). Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010); Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)
Bryan A. Chapman, Esquire