“Ask Sheila” Column

Dear Sheila,

A white employee of ours complained to HR that a black supervisor made one possibly racially-charged comment (that she “needed a suntan” to work in the executive suite). When the supervisor found out that she had complained, he allegedly told her that she had “cut [her] own throat.” Now she is complaining this response is unlawful retaliation. Could this really be a legal issue?

Struggling with Political Correctness

Dear Struggling:

A recent federal appellate decision just held that, yes, the supervisor’s response to the employee’s complaint was enough to get to a jury on a Title VII retaliation claim. The lower court had granted summary judgement to the employer, because it did not think the alleged retaliation (one comment) was “sufficiently pervasive” enough to go to a jury. The appeals court reversed, however, stating that the standard was whether a jury could find that the comment was sufficient to dissuade a reasonable employee from going forward with her claim. This is a much easier standard for an employee to meet than having to prove that the alleged retaliation was “sufficiently pervasive to alter the conditions of her employment.”

It is now more crucial than ever to train supervisors how to respond to discrimination and harassment complaints, and that they should never express negative thoughts to employees about the complaints. This is really hard for supervisors to do, and tends to go against human nature! Hence the importance of reinforcing it in training and policies. Also, if an employer can show it properly trained supervisors, it can sometimes have a defense against automatic liability for the supervisor’s actions. We will definitely start including the facts of this case in our supervisor training programs.

“Ask Sheila” is prepared by Sheila Gladstone, the Chair of the Firm’s Employment Practice Group. If you would like additional information or have questions related to this column or other matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.

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