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The dangers of appearing to retaliate against employees

Texas employers must be careful about not giving the appearance of retaliating against an employee who has reported sexual harassment or a form of discrimination at work. This is the case even if no grounds are found for the original complaint.

In one case that happened in New York, an employee claimed that he had been touched inappropriately by another colleague. He was touched on his biceps and shoulder blades. An internal investigation found that this was not sexual harassment. The employee was later fired after receiving unfavorable performances reviews and being the subject of a disciplinary meeting, according to the employer. The employee then sued.

The court also ruled that the touching was casual contact that did not constitute harassment in the absence of other actions. However, it also found that the employer's actions were retaliatory. The employee was fired about five months after the complaint was made, and the court argued that this suggested a causal relationship.

It is important for employers to understand the extent to which a behavior could be considered an "adverse employment action" that establishes retaliation. These actions are not limited to demotion, termination or yelling at an employee. In one case, a court ruled that a retaliation case should go to trial after an employee argued that a failure to offer a warm greeting was one of several retaliatory actions.

An employer with an employee who has reported any kind of discrimination might want to seek legal action regarding how to avoid the appearance of retaliation. Companies might also want to train supervisors in recognizing and avoiding retaliation. As the New York case demonstrates, even if a termination is supported by poor performance reviews, a court might still argue that an employer's actions against an employee who exercised the right to report workplace discrimination constitute retaliation.

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