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Mar 14, 2016

By Eric B. Meyer

What happens when an employee’s national origin claim becomes a retaliation lawsuit?

Late last week, Kurt Orzeck at Law360 wrote about a lawsuit that the EEOC initiated in California federal court against a bakery. In that lawsuit, the EEOC alleges that one of the bakery employees complained to the EEOC that she was discriminated against on the basis of her national origin. Subsequently, the bakery owner sued the employee in California state court for defamation.

The reason? Well, the charge identified his national origin as Portuguese (as opposed to noting that he was American, but of Portuguese descent). He also claimed that the charge said that he was “racist,” presumably because the charge alleges race and national origin discrimination.

Retaliation against an employee is unlawful

So, the Equal Employment Opportunity Commission responded with the retaliation lawsuit. According to the EEOC, the bakery owner “readily admitted in his deposition that he filed the defamation lawsuit because of [the employee’s] EEOC charge.”

Yes, a revenge lawsuit against an employee claiming discrimination is a bad idea.

Here’s the problem: Federal law makes it unlawful to take action against an employee because they filed a Charge of Discrimination with the EEOC. That’s called retaliation.

You may have heard of it before; it’s the most popular claim filed with the EEOC. Some courts have even held that the anti-retaliation provisions of Title VII protect employees from employer retaliation for filing complaints with the EEOC, even if the charges alleged are false or malicious.

Making a bad claim worse

So, look, I get it. It’s not pleasant to receive a Charge of Discrimination. And, if your name appears in that charge, with all sorts of baseless allegations attached to it, well, that really sucks.

But, take a breath. Let the wave wash over you, because responding with legal action — or even threatening it — can help morph a completely baseless claim into a retaliation lawsuit with teeth that may not only expose you to potential liability, but cost a heckuvalot more to defend.

So, even if you “win,” you probably lose anyway.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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