March 1, 2017
A recent decision from a federal court in New York serves as a reminder to employers in South Carolina and North Carolina of just how difficult an employee’s allegations of retaliation can be to challenge, and how employers successfully can defend themselves against a discrimination claim—only to lose on the retaliation claim based on the same facts.
In the case, Bien-Aime v. Equity Residential, No. 15-CV-1485 (VEC), (S.D.N.Y. Feb. 22, 2017), a groundskeeper at an apartment building in Manhattan sued his employer in federal district court, alleging that the employer had discriminated against him in violation of the Americans with Disabilities Act (ADA) and had retaliated against him for filing a prior complaint with a state agency. The employer moved for summary judgment, arguing that the groundskeeper had not suffered an adverse employment action, which is a necessary element of both claims.
The court denied the employer’s motion on the groundskeeper’s claim of retaliation, even though the groundskeeper had not suffered any change in the terms and conditions of his employment as he was never discharged or demoted, and his job title, benefits, schedule, and pay all stayed the same. As evidence of retaliation, the court instead credited the groundskeeper’s testimony that 1) the general manager of the apartment building “stopped saying good morning to him”; 2) his direct supervisor “spoke to him without a ‘warm welcome’ in his voice’” and “continually monitored him at work”; and 3) they both “talked to him like he was a criminal.”
In denying summary judgment on retaliation, the district rejected the employer’s argument that the conduct of the manager and the supervisor amounted, at most, to “petty slights or trivial inconveniences” that are not actionable as retaliation under the ADA, and, thereby, allowed the groundskeeper’s retaliation claim to proceed to the jury. In contrast, and based on the same facts, the court found, among other things, that the groundskeeper’s claim of discrimination should be dismissed because the undisputed record had made clear that he did not suffer any changes to the terms and conditions of his employment.
While not in the Fourth Circuit, which covers North and South Carolina, the case nevertheless illustrates the broad standard for “adverse employment action” for a retaliation claim. The ADA forbids employers from discriminating against persons with disabilities and also bars employers from retaliating against employees for seeking these statutory protections. Common to both an ADA discrimination claim and a retaliation claim, an employee must have suffered an adverse employment action of some kind. The requirement of an adverse employment action seeks to differentiate those harms that work a significant detriment on an employee from those that are relatively insubstantial or trivial. Importantly, however, courts in the Fourth Circuit and elsewhere have held that a much wider range of conduct may fall within the definition of “adverse employment action” for a retaliation claim compared to a discrimination claim.
What should employers take away from this? It is critical for them to have a policy prohibiting unlawful retaliation. There should be a clear process and policy in place for employees who want to make a complaint. The employer should provide, and document, training to managers, supervisors, and human resources representatives on the broad scope of retaliation claims and how to respond when a complaint is brought to their attention. An employer also should recognize that the natural impulse of a supervisor or manager might be to react negatively to an employee who has accused him or her of wrongdoing. Therefore, when an employee complains about discrimination or other unlawful conduct, managers, and supervisors—and sometimes even co-workers—should be reminded of their non-retaliation obligations.
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