The Long Arm of the (Retaliation) Law

A recent case in Indiana federal court is a good illustration of the potentially long arm of the law prohibiting retaliation in the workplace.

Rachael Barter worked for AT&T until her termination in March, 2015.  In April, she began working for NexLink Communications, which is a third party solutions provider for AT&T.  In May, Barter  filed a charge of discrimination against AT&T with the Equal Employment Opportunity Commission, alleging that her AT&T supervisor had sexually harassed her and that AT&T terminated her for reporting the harassment.

Barter alleges that when AT&T learned of her EEOC charge, AT&T pressured NexLink to bar Barter from directly interfacing with any AT&T customers.  When questioned by NexLink as to why AT&T was restricting her from interfacing with AT&T customers, Barter told NexLink about her sexual harassment allegations against AT&T and that she believed AT&T was retaliating against her by imposing restrictions on her employment with NexLink.  NexLink fired her the next day.  AT&T and NexLink dispute Barter’s allegations, arguing that they acted for legitimate business reasons unrelated to any protected activity Barter engaged in, but it will be up to a jury to decide if NexLink terminated  Barter because she filed an EEOC charge against her former employer.

Employers may not retaliate against employees who engage in “protected activity” – like filing a discrimination claim or participating in the investigation of a discrimination claim.   Retaliation can take many forms including, for example:

  • Giving an employee a performance evaluation that is lower than it should be;
  • Failing to give an employee timely and honest feedback on the employee’s performance or conduct;
  • Transferring an employee to a less desirable position or shift;
  • Increasing scrutiny of an employee’s performance or conduct in the workplace;
  • Making the employee’s work more difficult, e.g., changing the employee’s work schedule to conflict with family responsibilities.

As a best practice reminder, employers should train their managers in the law of retaliation so that they do not find themselves within the long reach of the (retaliation) law.

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