Be careful how you treat employees after a complaint of harassment is made

by McAfee & Taft

Recently, the Tenth Circuit Court of Appeals issued a decision in Barrett v. Salt Lake County that emphasized the importance of not retaliating against employees who engage in protected conduct.


Michael Barrett worked as a Salt Lake County, Utah, employee for 14 years. During that time, he received nothing but promotions and positive reviews. However, everything changed once he helped a colleague pursue a sexual harassment complaint against her boss. Once Barrett assisted his colleague – whose complaints of sexual harassment turned out to be entirely warranted – Barrett alleged that his supervisors thought he was a “noisy troublemaker” and began a campaign to have him discharged or demoted. Once Barrett’s supervisors learned of his role in the sexual harassment complaint, a disciplinary investigation began. Three other employees who served as witnesses for the sexual harassment victim were subject to disciplinary action, and Barrett was demoted.

Demoted employee gets his day in court

Following his demotion, Barrett filed a charge of discrimination with the Equal Opportunity Commission alleging that the county violated Title VII by retaliating against him for helping a coworker vindicate his civil rights. The Equal Employment Opportunity Commission issued a notice of right to sue, and Barrett filed suit in the District of Utah. The lawsuit proceeded to a jury trial where the jury found in his favor.

The County then moved for judgment as a matter of law arguing that Barrett did not prove his prima facie case of retaliation under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The district court denied the motion, and on appeal, the Tenth Circuit affirmed the trial court. The Tenth Circuit explained that the burden shifting framework of McDonnell Douglas plays no role in post-trial motions. Once a case goes to trial, the question becomes “has the employee presented enough evidence to warrant a jury finding that the adverse employment action taken against him was taken in retaliation for his protected civil rights activity?”

Boss-retaliationFurther, once a case goes to trial, the appellate court must view the evidence in the light most favorable to the jury’s verdict. In this case, the Tenth Circuit held that there was “ample evidence” that Barrett had suffered retaliation. In addition to his previous stellar record and the discipline administered to him and the other employees who acted as witnesses in the sexual harassment complaint, the Tenth Circuit pointed out other factors that weighed in Barrett’s favor. For example, the supervisor responsible for Barrett’s demotion lost (or destroyed) the records that justified the disciplinary actions against Barrett. Additionally, the supervisor in question was close friends with the supervisor who was accused of sexual harassment.

The County also took issue with the jury instructions. The district court instructed the jury that Barrett could prove a causal connection between his protected activity by: (1) showing that “but for” his protected activity he would not have been demoted or (2) proving his demotion was the product of “mixed motives.” After the district court issued the jury instructions, the U.S. Supreme Court issued a decision that explained that Title VII retaliation must be proven by the “but for” standard. Nevertheless, the Tenth Circuit held this jury instruction was a harmless error because the jury had stated that Barrett had proved “but for” causation.

In addition to seeking to overturn the jury’s verdict on liability, the County also sought to alter the district court’s award of equitable relief. After Barrett’s demotion, the County hired a new employee to take his old job. Because Barrett’s replacement did not play a role in the Title VII discrimination, the district court held it was not fair to displace him and ordered the County to leave Barrett in his current position but reinstate his former, pre-retaliation pay grade. The County argued that this created a windfall for Barrett of more pay for less work. In rejecting the County’s arguments, the Tenth Circuit recognized that the district court has great discretion in fashioning equitable relief under Title VII and held that the County, as the wrongdoer, cannot complain about the actions necessary to correct their unlawful conduct.

Finally, the County challenged the amount of attorneys’ fees awarded to Barrett. The district court awarded Barrett his fees incurred for pursuing his lawsuit as well as an optional, internal grievance process. The County did not challenge the fee award relating to the lawsuit but did challenge the award for those fees incurred in pursuing the internal grievance process. The Tenth Circuit reversed the district court’s award of fees for the internal grievance process and held that a successful Title VII plaintiff who chooses to participate in an employer’s optional grievance process is not entitled to recover his fees for participating in the optional process. The Tenth Circuit also awarded Barrett’s fees incurred in defending the appeal.

Lessons learned from the Barrett case

Retaliation claims can be costly for your company. In the last 10 years, the percentage of discrimination charges with the EEOC that had a claim for retaliation increased from 27.9% to 41.1%. The increase in retaliation claims means your company needs to take active steps to protect itself.

Make sure you have a written policy that clearly explains that retaliation against employees who make complaints of discrimination or other protected activity is strictly prohibited. Such language should be included in your anti-harassment, equal opportunity, and complaint policies.

Publish this policy to all of your employees. It is extremely important to train your employees, especially supervisors, to not engage in any sort of retaliatory behavior following the receipt of a harassment complaint. Make sure your employees know that retaliation includes more than just terminating an employee. Lesser actions, such as demotion, discipline, or any other actions that have a negative impact on an employee’s compensation, all can be the basis of a retaliation claim. If an employee is involved in an investigation, let him know that retaliation is forbidden and request that he report any retaliatory conduct to human resources.

Should a legitimate performance problem arise after an employee has made a complaint of discrimination or harassment, make sure you have good documentation about the performance issue. If disciplinary action becomes necessary for an employee involved in a discrimination complaint, it is a smart idea to have a high-level supervisor review the discipline decision to ensure that the supervisor is not unfairly targeting the complaining employee. Also, consider discipline imposed for similar offenses to other employees who did not engage in any protected activity.

  • Barrett v. Salt Lake County., No. 13-4084 and 13-4125 (10th Cir. June 13, 2014)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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