- A female, African-American plaintiff failed to show sexual harassment and race discrimination, but an appeals court said her retaliation claim should proceed (Collymore v. City of New York, No. 18-2099 (2nd Cir. Apr. 11, 2019)).
- Most of the New York City employee's allegations — including vague claims of inappropriate touching, being yelled at, and having her work closely scrutinized — fell into the category of nonactionable "petty slights," said the court. However, after the plaintiff made her sexual harassment complaint, her supervisors began forcing her to work through her lunch hour, despite knowing she needed to eat at a certain time to prevent migraines.
- Given that "a reasonable worker in Collymore's position would decline to report discrimination in order to conserve their health," and that there was a causal connection between the protected activity and the retaliatory acts, the 2nd Circuit revived her retaliation claim.
It's a common situation: Even with no underlying discrimination or harassment, an employer can still be found liable for retaliation against an employee who makes a complaint, or engages in other protected activity. For this reason, all complaints must be taken seriously and investigated promptly, even those that may seem minor or without merit. Additionally, experts recommend that training for managers include an anti-retaliation component.
In fact, employers can prevent such claims by ensuring that HR and managers know how to respond to initial complaints, Jonathan Segal of Duane Morris has said. He suggests that leaders thank workers for sharing their concerns, and explain that the employer takes them seriously. Additionally, it's crucial that workers understand the process that will follow, he noted.
Retaliation is often thought of in terms of larger adverse employment actions, such as discipline or termination, but as this case shows, anything that could reasonably be construed as deterring a reasonable person from bringing a complaint (such as punitively denying a lunch break in a way that exacerbates a medical issue) can qualify.