It’s not news to employers that it is illegal to retaliate against an employee who complains about discrimination or harassment. However, in a new decision, the Ninth Circuit Court of Appeals has expanded the range of what could be considered retaliatory. Employers can now be held liable not only for actions aimed at the complaining employee, but also for changes in policies that negatively affect co-workers as well.
Worker Complains On Behalf Of Women
After 28 years as a Willits postal carrier, William Ray became concerned about alleged gender bias and harassment at the post office. He complained to his superiors at an employee involvement meeting about how women were being treated. Ray said that during this and other staff meetings, postmaster Dan Carey denied his allegations, called him a “liar,” a “rabble-rouser” and a “troublemaker,” and told him to “shut up.”
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Crackdown On All Workers
Ray and two co-workers then wrote a letter to Carey’s supervisor complaining about the harassment. Ray said that because of that letter and other complaints, Carey eliminated a “self-management” policy that had allowed workers to arrive early to prepare their routes. And he also canceled employee involvement meetings.
Ray subsequently went out on a stress-related leave. While he was gone the postmaster allegedly ordered that the facility’s doors remain locked, creating an added burden on all workers. And Ray said that after he returned, all of the postal carriers had their routes cut, resulting in lower pay for everyone, including Ray.
Court Expands Definition Of Retaliation
Ray sued the U.S. Postal Service for retaliating against him for his complaints about the harassment of women employees. The Postal Service acknowledged that Ray had the right to complain about discrimination on behalf of his female colleagues. But it argued that only ultimate employment actions such as firing, refusing to promote or demoting the complaining employee could support a retaliation claim. Since none of these actions had been taken against Ray, the Postal Service said his case should be dismissed.
The Court of Appeals disagreed, explaining that retaliation includes actions that negatively affect not only the worker who made the complaint but co-workers, too—if the retaliation could deter other employees from making legitimate complaints. The court said that Ray should be allowed to proceed with his lawsuit and have a jury consider all of the postmaster’s alleged actions, not only those directed at him alone.
Practical Impact
This case makes it more important than ever to exercise extreme caution before instituting any workplace changes after an employee complains about discrimination or other alleged illegal activity. The key is not to take any action (or permit supervisors to do so) that could be perceived as punitive against either the complainer or other workers.