unfounded claim of discrimination or retali- ation by an employee. Terminating employment, demoting,
refusing to give raises, reassignment of job duties, even refusal to hire could all be considered an “adverse employment action” that could be the basis of a discrimination and retaliation claim. Some courts have even permitted employees to claim “third party retaliation” where the claimant was not claiming to be a victim of discrimination. Instead, the claimant alleges that an adverse employment action was motivated by the claimant’s support for a different employee who was the alleged victim of discrimination. In the case of United States EEOC v. Bojangles Rests., Inc., 284 F. Supp. 2d 320 (M.D.N.C. 2003), the Court allowed a female employee to claim that her employ- er’s refusal to allow her to return early from a maternity leave was retaliation for her support of another employee, the father of her child, who had complained that he was the victim of discrimination in an unrelated incident. Many employers find themselves defend- ing an EEOC claim or retaliation claim not because of actual discriminatory acts, but because they failed to properly document
AVOIDING AND DEFENDING RETALIATION CLAIMS
Do's and Don'ts for administrators,
transportation directors and school bus contractors • Do written performance reviews at least annually • Do be sincere and accurate when writing about an employee’s difficult or critical performance issues • Do written incident reports when sig- nificant and avoidable incidents occur • Do ask for employee signatures on performance communications (if signature is refused, simply note same with your initials) • Do apply your employee manual and employment policies consistently and fairly • Don’t sugar coat feedback or avoid necessary confrontation • Don’t give raises or bonuses to an employee with unresolved perfor- mance issues • Don’t be afraid to demote, discipline or terminate if you have properly docu- mented unresolved performance issues
why an employee was being disciplined, demoted, terminated, or not hired. Te law as written and interpreted supports an employer’s ability to defend themselves against improper or unfounded discrimina- tion or retaliation claims by employees. But, the employer’s defense will not be successful if there is no clear, sincere and contempo- raneously written documentation of the employer’s non-discriminatory reasons for
the adverse employment action. If in doubt, consult with legal counsel before taking adverse employment actions.
Rich Kelly is founder of RC Kelly Law Associates. Te firm specializes in student transportation for trade groups and school bus contractors in multiple states. For questions about this article, or to request copies of the cases cited, call 215/896-3846 or email
help@rckelly.com.
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