We’ve all heard stories about claims of unlawful discrimination in the workplace, based on such off limits criteria as gender, age, race or religion.
Also on the list of workplace no-nos is a sexually hostile work environment, where the atmosphere is just that, sexually hostile, and quid pro quo discrimination, where employment favor or continuation is conditioned upon tolerance or acceptance of unwanted sexual or romantic overtures by a workplace superior.
Employment claims such as these are often among the most bitterly disputed on the scale of lawsuit contentiousness, with each party typically brandishing a feeling of hatred toward the other.
In discrimination claims, the state of mind of the employer is typically at issue. That is, what caused the employer to take the adverse employment action, be it firing from employment, substandard compensation, basic mistreatment or failure to promote, against the claimant, who is typically a woman, an older person, a minority, or a member of a certain ethnic group. Was the treatment of the employee due to the employee’s poor work performance, bad attitude or misconduct, as is usually claimed by the employer, or was it due to the employee’s gender, age, or minority status, as is claimed by the employee?
And is the person claiming a sexually hostile work environment in reality just a malcontent prude who is always looking for something to complain about for no valid reason, or are they truly the victim of legitimate and palpable workplace gender hostility.
There are usually two sides to the story in each of these types of cases, which are typically diametrically opposed. And, the outcome of these cases in a trial can often be difficult to predict.
A much clearer type of workplace discrimination case, however, is a retaliation claim.
Retaliation claims are just that, a claim that adverse employment action was taken in retaliation against an employee for making a discrimination claim.
These arise after adverse employment activity, be it firing or poor workplace treatment, follows an allegation of discriminatory conduct, whether the discrimination allegation turns out to be meritorious or not.
This scenario can create some strange and less than comfortable bedfellows, such as when an employee alleges in a claim to the human resources department, the Equal Employment Opportunity Commission or the Missouri Human Rights Commission unlawful discrimination in the workplace or a sexually hostile work environment, but continues in the employment of the employer.
Because the first instinct of an employer against whom such a despicable, harmful, and false (in their opinion) claim is made is to want to fire the no-good so-and-so whose only issue is that they are a bad employee, with a bad attitude, and now a greedy liar, too.
But they can’t. Because even if it turns out that the employer could disprove discrimination on a prohibited basis, and prove all of the bad characteristics of the employee, firing them after the allegation is made would give rise to a legitimate claim of retaliation, in any event.
And so this can lead to the unsavory scenario of an employee who hates their employer and claims they mistreated them continuing to work for an employer who hates the employee who has sued them, but can’t fire them while the claim is pending.
This is one of the major bugaboos in representing employers in employment lawsuits. No matter how justified, you can’t fire or act hostilely to an employee who has made a discrimination allegation, or filed a claim or a lawsuit against you, so long as they desire to remain employed. Because you might defeat the discrimination claim, but you are going to have a problem with retaliation.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org