Most employers are aware that it’s illegal to retaliate against an employee who complains about discrimination. But did you know you are also at risk if you discipline or fire someone who merely supports a co-worker’s bias complaint? A Los Angeles employer recently learned this costly lesson when it was hit with a big jury verdict. We’ll review what happened and give you some strategies for avoiding the same problem.
Office Commotion Over Pay
Tonya Clemons, a black employee at Coast Federal Bank, complained she was paid less than white co-workers. The dispute was resolved within a few months when the Bank raised her pay-even though it maintained that the lower compensation was due to her poor performance and not discrimination.
James Moreno, a white co-worker of Clemons, had stepped forward to support her in the dispute. But, according to Moreno, when he voiced concerns about Clemons’ complaint, his manager told him not to talk to her anymore. Moreno also claimed a human resources representative forced him to sign a memo stating he would be fired if he continued to discuss discrimination issues.
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Employer’s Side
The Bank’s attorney, Steven Joffe, told CEA the Clemons dispute was a hot topic of gossip in Clemons’ department. Joffe acknowledged that when it was finally resolved, employees-including Moreno-were told to stop talking about Clemons’ case because it was hurting morale and wasting time. And Joffe said the Bank did ask Moreno and other employees to sign a memo-but it only stated that they would not discuss the confidential interviews they had with the human resources department.
White Co-Worker Sues
Just a few months after the Clemons matter was settled, Moreno was terminated when his position was eliminated as part of a reduction in force. Clemons was laid off the very same day.
Moreno then sued Coast Federal for violating California’s anti-discrimination law. He charged the Bank with retaliating against him-by ordering him not to talk to Clemons and then firing him-all because he supported her pay claim.
The Bank argued Moreno was laid off as part of a legitimate reduction in force. It also asserted that it didn’t even know Moreno had endorsed Clemons’ discrimination charge because, contrary to his allegations, he had never raised the issue with management.
The jury sided with Moreno and ordered Coast Federal to pay him $330,000, plus $200,000 in attorneys’ fees. Coast Federal has appealed. Moreno’s attorneys declined comment.
Positive Prevention Steps
The steep verdict in this case spotlights the fact that retaliating against someone who supports a co-worker’s complaint is just as serious as retaliating against the complaining employee. It’s unlawful to take action against any worker who opposes alleged illegal practices in your organization-whether they have complained to you or a government agency, or are merely discussing the problem with other employees. And this is true even if it turns out that what they were complaining about was not illegal in the first place-so long as the worker reasonably believed it was.
Here are some ways you can prevent retaliation lawsuits:
- Use caution when restricting workers’ speech. If employees are gossiping about a workplace issue or sticking up for a co-worker’s rights, be careful if the problem under discussion involves potentially illegal conduct on your part. Don’t try to prevent employees from talking to each other about the issue. Instead, focus on conduct or performance problems. For example, you can discipline an employee who isn’t getting work done because they’re spending too much time talking to fellow workers.
- Document reasons for employment actions. If you take action against an employee who complained about or protested alleged discrimination or illegal acts, make careful notes of your legitimate reasons for doing so. This will make it easier to show that you were not retaliating.
- Watch your timing. The jury in the Coast Federal case found the short time between Clemons’ claim and Moreno’s termination particularly troubling, according to the Bank’s attorney. If your reason for firing or disciplining an employee is totally unrelated to their support for a workplace protest, let plenty of time pass after the claim is made before you take action. This will make it less likely that a jury will believe that the adverse action was connected to the person’s complaint.