Denying Discrimination Can Be Proof Of Retaliation If An Employer Uses The Wrong Words

Today’s video podcast discusses a situation in which an employer appears to leap to a conclusion about an employee’s motivation behind a complaint of discrimination. Mark’s paper discusses this issue in more depth.

In short, it is not unusual for supervisors to attribute some sinister, underhanded, bad faith, strategic motive to employees who complain about alleged discrimination. Perhaps this is because employees sometimes make complaints out of such motives. Or, maybe it is because it is a natural defense mechanism. But, in any event, supervisors should generally refrain from stating that they believe a complaining employee is using their age, sex, race, or other protected characteristic to manufacture a meritless claim, shield themselves from legitimate discipline, or for other bad faith or strategic purposes. Otherwise, such statements could be used as proof of retaliation.

For example, in Burnell v. Gates Rubber Co., 647 F.3d 704 (7th Cir. 2011), the African-American plaintiff had a long history of repeatedly complaining about perceived racial discrimination. His most recent complaint was in early 2006. In December 2006, the plaintiff was given a disciplinary warning. He complained about that discipline, but he did not contend the discipline was a product of racial discrimination. In response to the plaintiff’s complaint about that discipline, the plant manager accused the plaintiff of “playing the race card” and told him to find another job if he did not enjoy working for the defendant. Id. at 707. The next day, after the plaintiff refused to sign another disciplinary warning, he was terminated.

The district court granted summary judgment against the plaintiff’s race discrimination and retaliation claims. But, the Seventh Circuit reversed the trial court on the plaintiff’s retaliation claim. Id. at 709-10. The Court noted the plaintiff’s long history of complaints about perceived racial discrimination. It then stated that, “[g]iven [the plaintiff’s] prior complaints of racial discrimination, [the plant manager’s] statement is evidence that those complaints caused [the plaintiff’s] discharge.” Id. at 710. The Court concluded by stating, “[The plaintiff] certainly hasn’t proven causation by a preponderance of the evidence, but his history of complaints and [the plant manager’s] “race card” statement are enough to allow [the plaintiff] to survive summary judgment on his retaliation claim.”

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