More on Retaliation Claims

Not only the victims of alleged harassment or discrimination are protected for exercising their right to complain and be protected.  Employees who oppose such practices or participate in an investigation of a harassment or discrimination claim also are protected from retaliation for those activities.    The Equal Employment Opportunity Commission ("EEOC") recently filed suit against Sara Lee Corp. for firing an African American employee employed at its Houston facility who complained about allegedly discriminatory practices directed at her and other employees.  The director of the EEOC's Houston office commented, "Even if an alleged discriminatory action is found to lack merit, the EEOC will still hold employers accountable for any retaliation related to it."

An employee's stated dissatisfaction regarding diversity efforts alone, however, may not be protected activity.  For example, in Hood v. Pfizer, the Third Circuit held that an employee who asked at a meeting "why more wasn't being done to promote diversity within [his department]" did not complain about discrimination but rather expressed a generalized concern about the extent of his employer's affirmative diversity efforts.

As part of any investigation of a harassment or retaliation complaint, employers must ensure that the complainant and any employee participating in the investigation are protected from retaliation.  The best way to prevent retaliation is to keep complaints as confidential as possible - if managers and employees don't know about a claim, then they can't take an adverse action related to it.  While absolute confidentiality cannot be promised, only those with a need to know should be privy to a complaint.  In addition, once the complaint is resolved, even if it is determined to be without merit, as I stated in my last post - it ain't over.

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