Don't File A Whistleblower--Even When They're Wrong!

Your employee alleges discrimination or harassment, or conduct that s/he believes is otherwise illegal. Most of you know that you shouldn't fire the employee or take some other adverse action in response. I've posted about that here. That's retaliation, and it's illegal. In a discrimination case, you could pay big bucks for both the discrimination and the retaliation--if the employee proves the underlying discrimination. What if you -- or a court-- finds the discrimination/harassment/misconduct allegations to be unfounded though? Now can you fire the employee--or do something else to teach him/her a lesson? In most cases no. Let's take a look and see why...

Let's use a real case. Captain Walter Busby, a 35-year veteran of the Tulsa Police Department, served on the Board that organized the City's Martin Luther King Day Parade. Prior to 2010 he would not wear his uniform or march with the Department in the parade, because he felt the Department hadn't made sufficient progress in race relations. Just before the 2010 parade, a major and fellow officer in the Black Officers' Coalition ordered Busby to march in the parade. Since he was the only Black captain under that major, and the only one ordered to march, Busby felt the order to be racially motivated. Captain Busby first made his opposition known, then requested leave for that day, which the Department denied. Then he marched. Obviously things didn't end there, or I wouldn't be writing about a case. Here's what happened next...

Sometime after the parade, Captain Busby received a "needs improvement" evaluation from the major who ordered him to march. Then he was moved from his day shift to a shift that ended at midnight, resulting in him using more leave time so he could see his family. After the Department denied one of his requests for 2 hours' leave, Captain Busby sued the Tulsa P.D. for discrimination, disparate treatment and retaliation.

Do you think the marching orders were racially motivated? What about the denial of leave so he wouldn't have to march? The federal District Court did not think so. The court found the marching orders and denial of leave to be "mere inconvenience" that did not have a significant impact on his employment, and so they did not rise to the level of discrimination needed to prove a Title VII claim. So the case is over, right? Not so fast! Although the court found Captain Busby's allegations of discrimination to be unfounded, it found that his opposition to the marching orders was protected and that the major's negative evaluation and the change in shift were retaliatory--and that violates Title VII. While Captain Busby did not seek monetary damages, he did get a court order purging his negative evaluation and restoring to him the 453 hours of vacation and sick leave he took after his shift change. The court also ordered the City to pay Captain Busby's attorney fees. (Remember also that the City also had to pay its own legal fees. You can guess that even this relatively mild outcome results in a respectable amount of change.)

Let's look a little deeper. Opposing discrimination (or other activity believed to be illegal) is protected under Title VII (and other anti-discrimination laws, and other regulations). The opposition need not be a formal charge. Voicing a complaint or concern to a supervisor is enough--and the employee doesn't have to be correct, just reasonable in their belief.  If you then take an adverse action against that employee, you may be liable for retaliation, even if the underlying claim is unfounded, and a court dismisses it. The order to march may not be a Title VII violation, but a reasonable employee would probably have found the subsequent negative evaluation and the shift change to be a significant adverse occurrence, connected with Captain Busby's complaints of racial discrimination.

You may not need me to spell out the takeaways, but here they are anyway:

• If your employee complains of discrimination, harassment, other misconduct that, if true, would be illegal, take the allegation seriously and investigate it;
• Whatever your conclusions are, don't retaliate;
• Allegations of discrimination, harassment or other illegal actions are protected under anti-discrimination and, often under other federal and state laws, as long as they are based on a good faith belief. They need not be correct;
• Even when the underlying allegations are found to be incorrect or unfounded, an employee can still win significant dollars in their retaliation claim;
• Retaliation includes not just termination, but any action that a reasonable employee would find significantly adverse. It can include harassment, being excluded from important meetings, being demoted, shift changes, salary reductions, negative performance evaluations -- you get the idea;
• Think before you act. Speak with counsel before you take an adverse action against an employee who has alleged discrimination, harassment, or other illegal conduct.

OK, enough said (for now). See you next week.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ