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COPYRIGHT 2006 Aspen Publishers, Inc.
The employee who files a complaint of harassment or discrimination against his or her supervisor or coworkers is unlikely to be parking in the "Employee of the Month" space anytime soon. Even if the complaint has merit (and even more so if it does not), the employee's act of filing the complaint is likely to make his or her relations with his or her supervisor and coworkers a bit uncomfortable. Of course, the law provides that employees who complain of harassment or discrimination must not be retaliated against, and that law is more or less successful in deterring overt acts of retaliation such as firings, demotions, pay cuts, etc. The law is less successful in forcing employees to be nice to someone they loathe. Employees can be told to stop using bad language around a coworker, but it is considerably more difficult to require employees to continue to interact with a coworker when it was their very interaction with that coworker that gave rise to a harassment complaint. Most employees will find it easier--and safer--just to avoid the employee who complained. Sometimes this results in yet another complaint from the employee, a complaint that coworkers are shunning or ostracizing him or her.
Shunning and ostracism of an employee who has complained of harassment or discrimination but who continues working is often claimed to constitute a form of unlawful retaliation. A growing number of internal policies of public and private sector employers include shunning and ostracism as examples of proscribed conduct. The courts, on the other hand, have been reluctant to find shunning and ostracism to be unlawful where it is merely hurtful or humiliating, as opposed to interfering tangibly with the employee's ability to do his or her job. Whether this reluctance will continue in an era in which the employment lawsuit of choice is for retaliation remains uncertain. Even some conservative courts have begun to stretch a bit to find some tangible adverse job impact where a plaintiff has been shunned or ostracized. For the time being, however, a substantial majority of courts are unwilling to declare the "silent treatment" to be illegal.
A Broadening Definition of Retaliation
Section 704 of Title VII contains that statute's prohibition against an employer's retaliation against any employee "because he has opposed any practice made an unlawful employment practice ... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." (1) Other federal anti-discrimination laws contain similar provisions. (2) Some state laws extend this prohibition to supervisors and coworkers individually as well. (3)
As the EEOC notes in its Compliance Manual, there are three elements to a claim of retaliation:
* Opposition to discrimination or participation in covered proceedings;
* Adverse action; and
* Causal connection between the protected activity and the adverse action. (4)
As the EEOC points out, "It]he most obvious types of retaliation are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge," (5) but that...
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