Employment & Labor Insider

I hope this stock photo inspires you.

You may remember Marlean Ames, who sued her employer – a state agency in Ohio – for allegedly discriminating against her for being heterosexual. (We call that “reverse sexual orientation discrimination.”)

Her case went all the way to the U.S. Supreme Court, and she won a major victory last year, albeit a preliminary one. The Court said that she had asserted a valid claim under Title VII and didn’t need to prove anything extra just because her claim was for “reverse” discrimination instead of “regular” discrimination.

After the SCOTUS ruling in Ms. Ames’s favor, the case was sent back to the lower court and is still pending.

Last week Ms. Ames filed a second lawsuit against her employer, claiming this time that she has been retaliated against since her Supreme Court win.

The new lawsuit claims that, since her SCOTUS victory, Ms. Ames was denied a promotion although she was objectively the most qualified candidate, was disciplined for speeding in a county vehicle (according to her allegations, it sounds like it was for the most part minor speeding and only for a few minutes at a time), and was ostracized at work.

The employer hasn’t had a chance to respond. So I won’t get into who’s right and who’s wrong.

Yet.

Here’s what I want to talk about now. In most cases, employees don’t engage in “protected activity” until after they’ve quit or been fired. From the employer’s standpoint, that’s never pleasant, but it is usually bearable.

The true nightmare scenario is when the person engaging in the protected activity stays right where she is.

"Mommy, I dreamed that I had to supervise an employee who was suing our company. *sob*"

In Ms. Ames’s case, the original alleged discrimination took place in 2019, and she sued for the first time in 2020. She's still working for that same employer now, six or seven years later. Through Lawsuit One, an appeal, Supreme Court review, remand to the trial court, and now Lawsuit Two.

Very stressful for Ms. Ames, no doubt, but also for her employer.

When an employee engages in some type of legally protected activity -- an internal complaint, a discrimination charge, a lawsuit -- and she stays put, how can the employer function while protecting itself from retaliation claims?

It’s tough. But here are six rules that should help you survive.

Retaliation prevention: Six rules for employers

No. 1: See Rule No. 6.

No. 2: Prepare your supervisors. This applies to all of the protected employee’s chain of command, but especially front-line supervisors and anyone who was “accused” personally in connection with the complaint, charge, or lawsuit.

First, they need to know to behave as normally as possible. If they’re normally introverted and a little standoffish with everybody, they should be fine continuing to be that way. But if they’re more sociable, they’ll need to make the superhuman effort to be “normally” sociable with the protected employee.

Second, if they believe that they may need to take some sort of “adverse action” with the protected employee, they should know that they must consult in advance with Human Resources or Legal. Let them know that this rule is for their protection. Because it is.

Third, they need to be aware that employees who engage in protected activity often view themselves as “invincible.” They may start smarting off to the supervisor, failing to perform tasks, behaving unprofessionally, calling out without a valid reason, whatever. Management should know to come straight to you if that happens, rather than trying to handle it alone.

(The good news from an employer’s standpoint is that many of these "invincible" employees go so far overboard that the employer is eventually able to terminate them legitimately.)

Fourth, supervisors and managers may need a safe place to “vent.” Venting sessions should be held with counsel present, to preserve attorney-client privilege as much as possible. See Rule No. 6.

Fifth, employers should have a “zero tolerance” policy on retaliation by management. Retaliation by a supervisor or manager that is confirmed should be ground for immediate discharge of the supervisor or manager. But, of course, make sure that they know this in advance.

No. 3: Treat the “protected” employee just like anybody else who is "similarly situated." If she’s a good employee, reward her as you would any other good employee. If she breaks a rule that you never – or hardly ever – enforce, let it go. If she breaks a rule that normally results in a written warning, then issue one. If she commits a termination offense, terminate. But see Rule No. 6.

“If the speed limit is 55, I'm not speeding if I go 62, right?”

No. 4: Ask yourself: “What if my very best employee did the same thing? Would I handle it the same way?” This is related to No. 3. Using one of the examples from Ms. Ames’s retaliation lawsuit, let’s say your employees are expected to observe all posted speed limits when driving on company business, and you learn that your protected employee drove seven miles over the speed limit for a few minutes on an hour-long trip. Before you take action, ask yourself: If your very best employee had done that, would you have taken any action? If so, then you should be able to take the same action with the protected employee. But if you would look the other way with your star employee, then you'd have to do the same with your protected employee.

No. 5: Document! (That’s a verb.) Let’s say your protected employee got an “Exceeds Expectations” review last year, but this year you are going to give her a “Meets.” Is that retaliatory? It depends. If you’re doing it because you’re mad at her for engaging in protected activity, then yes. But it’s also possible that your Chief HR Officer decided this year that too many employees were getting “Exceeds” reviews and directed everyone to end the ratings inflation. If that’s what happened, it is probably documented somewhere. That documentation will be a huge help if your protected employee claims that her “Meets” rating is retaliatory. So save that documentation. If the decision from Corporate is not already documented, document it yourself with a note to file. (Of course, apply it to everybody, not just the protected employee. But you already knew that.)

If the employee is violating your policies or performance standards, be sure you document that, too, with witness statements or other supporting evidence as appropriate.

(THIS IS IT!!! THE ONE YOU'VE BEEN WAITING FOR!!!) No. 6: Consult with employment counsel every step of the way. Managing an employee who has engaged in protected activity is difficult and stressful, and you will need help to avoid a retaliation claim. Consultation all along is ideal. But at the very least, consult with counsel before doing anything remotely "negative" with a protected employee. Make sure your employment counsel agrees in advance (a) that you are justified, (b) that you are being consistent with the way you’ve treated other employees in the past, and (c) that you can prove both (a) and (b).