- A city hospital employee, Iryne Witek, who was suspended and then terminated after allegedly being referred to as a "Jew" who thinks "she can do what she wants" was unable to prove her bias and retaliation claims (Witek v. City of New York, No. 19-718 (2nd Cir. March 30, 2020)).
- Other than Witek's suspension and termination which caused her "understandable frustration and disappointment," said the 2nd U.S. Circuit Court of Appeals, the other incidents she alleged did not rise to the level of adverse employment actions. Additionally, there was no evidence that the suspension and termination were motivated by bias.
- While a jury could find that the person making the comments "harbored discriminatory animus" toward Witek, that person was not involved in the decision to suspend or fire her. Furthermore, "Witek was suspended and then terminated after disciplinary proceedings conducted by hospital officials with no knowledge of Witek's protected activity." Accordingly, the 2nd Circuit upheld a summary judgment ruling in favor of the city.
As this case demonstrates, applicants and employees will not prevail on their retaliation or bias claims if there is insufficient evidence that an adverse action was actually caused or motivated by illegal bias.
But this is largely beside the point; employers should do their best to establish a respectful, legally compliant workplace where problematic actions and comments don't happen in the first place. Regular training for managers, supervisors, and employees on what is and isn't acceptable workplace behavior is essential, experts previously told HR Dive. Additionally, all complaints — even seemingly minor ones — should be promptly and thoroughly investigated.
Consistency is important, too. Policies should be enforced in a standard way, and similar infractions should be dealt with similarly. Recently, an African American lab employee who filed a bias charge was allowed to proceed with his retaliation claims because he presented evidence that other comparable employees were treated better.
Timing is also important to defending a bias or retaliation claim. The closer in time a protected activity occurs to an adverse employment action, the more likely it looks to a factfinder that illegal motivations were behind it. Documentation of legitimate performance issues, and the corrective actions taken, should be contemporaneous, detailed, and free of legally conclusory or sarcastic comments.