- An employee's demotion wasn't retaliation because, among other factors, it took place almost a year after the employee engaged in protected conduct, the 8th U.S. Circuit Court of Appeals ruled (Williams v. United Parcel Service, Inc., No. 19-1004 (9th Cir., June 29, 2020)).
- Cedric Williams worked for UPS as a labor manager, representing the company in grievance proceedings. After alleged performance deficiencies, he was placed on a performance improvement plan and eventually demoted; he sued, claiming race discrimination and retaliation. He argued that his previous participation in a race discrimination grievance proceeding was the real reason for his demotion, noting that the ultimate decision makers — an HR director and district president — knew about that protected activity.
- A federal district court granted summary judgment for UPS and, on appeal, the 8th Circuit affirmed. While the HR director and district president made the ultimate decision to demote Williams, they were acting at the request of Williams' supervisor and that individual's supervisor — neither of whom knew about the testimony, the court said. Additionally, the demotion occurred almost a year after the protected activity; "We have previously held that, without more, an 'interval of more than two months is too long to support an inference of causation,'" the court said, quoting its earlier precedent. Moreover there was no evidence that anyone at UPS thought Williams's testimony was harmful to the company.
Employers must exercise caution when an adverse employment action follows on the heels of protected activity, sources previously told HR Dive. Because a short period of time between the protected activity and an adverse employment action can create an inference of retaliation, employers must ensure they have a well-documented, legitimate, non-discriminatory reason for the action, they said.
For example, a Philadelphia fitness instructor fired only hours after she informed company executives about a complaint she filed with the U.S. Equal Employment Opportunity Commission was allowed to move forward with her retaliation claim. The appeals court said her allegation was supported by the fact that there were "only hours" between the employer finding out about her protected activity and her termination.
Once an employer knows that a worker has engaged in protected activity, it's important that "retaliation red flags" such as increased supervision, highlighting alleged performance issues or increased work standards or expectations be avoided, experts have told HR Dive.