Reprinted from the June 1, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

You Be The Judge:
For An Employee Action There Is A Management Reaction

In this feature, MLB poses a common workplace conundrum and allows you to judge the employer’s fate. See how well your knowledge of new twists and turns in employment law measures up.

SCHOOL’S OUT

Peggy Karg had an idea about how she could kill two birds with one stone. She was looking for a job, while her daughter was looking for a way to get into the prestigious private school the next town over. Karg decided to apply for a job at the school, hoping she could obtain the additional benefit of getting her daughter into the school.

Karg applied for and was hired for a job as a dining hall server. Shortly after she began, her daughter, Hannah, applied for admission for the following term. Things were looking up in the Karg household.

Unfortunately, it all came crashing back down on the Kargs very quickly. While Karg enjoyed her job, her co-workers made her miserable. Not only did they make sexually harassing comments to her, but they also made inappropriate comments about her attention deficit disorder. She couldn’t avoid them, as her job required them to work side-by-side for most of the day.

Since expressing her displeasure to her co-workers didn’t change anything, Karg complained to her manager. Three days later, the harassment came to a stop — only because Karg found herself on the unemployment line once again when the manager laid her off.

Within a month, the Kargs learned that Hannah’s application was wait-listed. A notation on the application form, dated three days after her mother was laid off, stated that the employee “no longer worked” there. In the end, Hannah was denied admission.

Peggy Karg claimed in court that she had been retaliated against when the school fired her and then rejected her daughter’s application. The school argued that the daughter was not an employee and denying her admission was not an employment action; thus, the employee could not use that as a basis for a legal claim.

Does Karg have a valid retaliation claim based on the employer’s actions taken against her daughter?

THE ENVELOPE PLEASE

Yes, Peggy Karg could have a valid claim. A court that heard a similar case ruled that the employee met the three criteria of a retaliation claim: 1) She engaged in a protected activity; 2) she suffered an adverse employment action; and 3) there was a causal connection between the two. There was no doubt about #1: The complaints to her manager were protected activity. As for #2 and #3, the court ruled that it is not an absolute legal requirement to have retaliatory acts affect the terms and conditions of employment.

A retaliatory act is broadly defined by the EEOC as one that is “reasonably likely to deter protected activity by that individual or other employees.” Hurting the employer’s case was the notation on the application form, which provided “more than a hint of a temporal relationship,” said the court. Although the court admitted the tie was tenuous, it held that the case deserved to be heard.

LESSON TO BE LEARNED

It’s obvious that a negative reaction against an employee who has filed a harassment complaint can form the basis of a retaliation lawsuit. As this ruling shows, it’s important to realize that actions taken against a non-employee and that do not affect the employee’s terms or conditions of employment can also spark an employee’s retaliation claim if the action has other adverse effects on the employee. The bottom line is whether the action was motivated by a desire to chill employee complaints, or had the consequence of chilling employee complaints.

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