- Sufficient evidence supported a jury verdict in favor of a former FedEx employee who was told she should accept a demotion because "females are better suited to administrative roles and males are better suited to leadership roles" (Hubbell v. FedEx SmartPost, Inc., Nos. 18-1373/1727 (6th Cir. Aug. 5, 2019)).
- The employee alleged she was repeatedly disciplined and eventually demoted, due to her sex, from her position as lead parcel sorter. A jury found that FedEx retaliated against her — for filing complaints with the Equal Employment Opportunity Commission (EEOC) and for filing a lawsuit — by unfairly disciplining her, not allowing her to earn extra pay by clocking in early or clocking out late as other workers did and closely surveilling her; she was eventually fired.
- The 6th U.S. Circuit Court of Appeals upheld the jury verdict of $85,600 in combined front and back pay, $30,000 in non-economic damages, and $403,950 in punitive damages; the employee also received $157,733.75 for attorney's fees.
As this case illustrates, retaliation can be costly for employers — not only in terms of monetary damages (which can be significant), but also in terms of time, hassle and damage done to company reputation and worker morale.
Retaliation often accompanies allegations of harassment or bias, and it can stand alone as a separate claim even if no underlying harassment or discrimination is found. In order to establish a claim for retaliation, an applicant or employee must engage in "protected activity" and suffer an adverse consequence for doing so.
What constitutes protected activity? The EEOC provides several examples:
- Filing an EEO complaint.
- Serving as a witness, or participating in any other way, in an EEO matter.
- Participating in an employer's internal EEO complaint process.
- Complaining or threatening to complain about alleged discrimination against self or others.
- Refusing to obey an order reasonably believed to be discriminatory.
- Advising an employer on EEO compliance.
The EEOC also notes that opposition can be protected even if it is informal or does not include the words "harassment," "discrimination," or other legal terminology. A communication or act is protected as long as the individual is conveying good-faith resistance to a perceived potential EEO violation.
In order to help prevent retaliation, HR should implement and publicize an anti-retaliation policy, document retaliation-related activity, train on the topic of retaliation and encourage (rather than discourage) employee complaints.