Dive Brief:

• A former Rockford, Illinois, elementary school employee was unable to prevail on his race discrimination and retaliation lawsuit against the Rockford Board of Education because he could not prove that he was meeting the Board's legitimate job expectations or that his past complaints caused his discharge, the 7th U.S. Circuit Court of Appeals ruled (Ford v. Rockford Board of Education, No. 19-1309 (7th Cir. Oct. 23, 2019)).
• Roy Ford, a parent and community engagement specialist, was fired after several infractions, including failing to supervise two students who fought each other while in detention, failing to properly report his absences and his refusal to go on a field trip to the zoo. He refused to go to the zoo because, as the court said, having never been to a zoo, "Ford feared that he and his students would be in danger there."
• Ford sued, claiming that he was fired because of his race and past complaints about discrimination, the court said. A district court granted summary judgment for the employer; on appeal, Ford argued that the principal was not his direct supervisor so that, in disobeying the principals' order that he go on the field trip, he was not insubordinate. The court said Ford had been warned that the principal was "your immediate supervisor as you are in his building" and in "the chain of command." Ford, who is black, also argued that insubordinate non-black workers were treated more favorably. The appeals court said the workers Ford cited were not comparable. Ford then claimed he was fired in retaliation for his past complaints to the Board about discrimination. The court noted that Ford had made his complaints months and years before his suspension. "These came too far in advance of his discharge to support a reasonable inference of 'suspicious timing,'" the court said, adding that it usually allowed no more than a few days to elapse between the protected activity and the adverse action.

Dive Insight:

Employees aren't insulated from legitimate disciplinary action when they complain about bias, harassment or retaliation, but employment actions in the wake of such activity must be taken carefully and should never show unequal discipline or differing performance standards.

Thorough documentation can be key in defending against discrimination and retaliation claims, experts have said, explaining that everything should be documented and that phrases like "bad attitude" and "not fitting in" should be avoided because they often lead employees to think their manager is unhappy about their age, race or other protected characteristic.

Employers should note that a short period of time between a protected activity, such as complaining about bias and an adverse employment action, may create an inference of retaliation. In this instance, the 7th Circuit said it usually requires just a few days between the protected activity and the adverse action for such a showing, but other courts have considered longer stretches.