Published:

05/24/2011 08:15pm

Retaliated Against At Work for Doing What’s “Right?” Courts and Juries are Now on Your Side

Important Intro Note: On May 27, 2008, the United States Supreme Court issued decisions in two related cases that raised this fundamental question: When Congress granted employees rights to fair employment practices, did Congress also mean to grant employees protections from retaliation from employers for exercising those rights? The Supreme Court’s answer, to the surprise of many “Court-watchers,” was a resounding “YES.” It appears that, when it comes to the protection of fundamental, individual rights, “very conservative” and “very liberal” can sometimes mean the same thing.
ACTUAL CASE HISTORY: Alexa, 49, was Managing Director, Human Resources, for a large magazine publishing firm with 6,000 employees worldwide. She’d worked in the Human Resources field for almost 25 years, and really “knew her stuff.” She’d been in her present position for six years. If a subject was part of what people called “human resources,” Alexa had “seen it, done it, and lived it.” But what she was experiencing when she contacted our office was something she’d never experienced before.
As part of her regular duties, Alexa was responsible for overseeing investigations into allegations of illegal discrimination. Over time, she had prepared detailed procedures to handle such complaints, each procedure carefully designed to ensure objectivity, transparency and accuracy of findings. Great care had gone into designing and implementing these procedures; Alexa was very proud of them.
Over the six weeks prior to Alexa coming to our office, the Human Resources Dept. had received three separate complaints of discrimination from the executive support staff. One complaint alleged a failure to promote based on race, one complaint alleged a denial of equal compensation based on gender, and the third complaint alleged hostility based on age. The one thing they all had in common was the person complained about: Arnold, the company’s Chief Operating Officer, who Alexa, herself, reported to. Though the three near-simultaneous complaints were unusual, Alexa anticipated using the usual company procedures to investigate them. In fact, Alexa reasoned, in cases of complaints against the company’s senior executives, it was more important than ever that Human Resources use the time-tested, objective procedures in place to address these complaints. However . . . others apparently saw it differently.
At the next meeting of the Operating Committee, of which Alexa was a member, she gave her usual summary of accomplishments and goals. Nothing at all unusual took place at the meeting. However, after the meeting Howard, the company’s CEO, asked her to remain a few minutes to go over something he said was “on my mind.” When everyone else had left the room, Howard got right to the point: he had heard of the complaints against Arnold , and he wanted the files sent directly to a corporate lawyer he knew, to personally handle the investigations. Alexa asked why these complaints should be handled differently than all others, and by an attorney with no experience in this field. Howard responded simply, “That is my decision.” Alexa knew the attorney he had in mind: he was a regular golf buddy of Arnold ‘s. Two weeks later, the three files came back. Each contained an identical summary of findings: “No evidence of wrongdoing found. Complainant appears to have lied.”
Alexa was aghast. Not knowing what to do, she turned to the section of the Corporate Policy Book entitled “Reports of Wrongdoing.” As required by company policy, Alexa promptly made arrangements to speak with the company’s General Counsel about the matter. The two of them met the next day. She shared her concerns that the complaints were never truly investigated, that the purported findings were little more than a sham, and that the inexplicable failure to follow company procedures could be used by a smart trial attorney to seriously damage the company’s credibility, finances, and reputation. To her dismay, the General Counsel told her he simply wasn’t