Thursday, August 25, 2005

Guilty Until Proven Innocent

Excerpt of an e-mail from the law firm of McGuireWoods ("No Good Deed Goes Unpunished? Seventh Circuit Rules That No Adverse 'Employment' Action is Necessary to Sustain Title VII Retaliation Claims"):
Executive Secretary, Chrissy Washington worked for the Illinois Department of Revenue on a flexible schedule from 7 a.m. to 3 p.m., instead of the standard 9-5 schedule, allowing her to care for her son with Down Syndrome. When some of her duties were reassigned to others, she filed charges with state and federal agencies alleging race discrimination. Subsequently, a senior manager required that she work from 9 to 5, and when she refused, her position was abolished. Washington was assigned to another Executive Secretary post with a different supervisor and was required to apply anew for a flextime schedule, which was refused. Washington maintained that it was her prior discrimination charge that led supervisors to rescind the flextime schedule on which her son depended. . . .

. . . [The Seventh Circuit Court of Appeals] concluded (with a highly entertaining reference to the comic strip Dilbert) that where an employer retaliates for protected activity by exploiting an employee's known vulnerability, such as Washington's reliance on flextime to care for her disabled son, the action can be a material change sufficient to sustain a retaliation claim under Title VII [of the Civil Rights Act of 1964]. The standard for materiality, the court noted, is whether the employer's action has the "potential" to dissuade an employee (and, by logical extension, other employees) from pursuing her rights under Title VII.

Although this opinion does not reflect a uniform view among the jurisdictions on the ultimate issue, it should serve to alert employers to some of the potential problems that can arise from the implementation of flextime schedules and other employee-friendly initiatives. The court clearly says that once these admittedly optional benefits are in place for an employee, their removal can serve as a basis for retaliation claims.

Lesson 1: A benefit, once bestowed, can become an entitlement.

Lesson 2: An employee who has filed an Equal Employment Opportunity (EEO) claim against an employer may became immune to otherwise defensible business decisions by that employer.

As my HR director used to say whenever a disgruntled employee or former employee filed an EEO claim: "We (the company) are guilty until proven innocent." Because that's how the EEO racket works.