A Discrimination Complaint Does Not Protect the Employee from All Adverse Employment Actions

While employees are protected from retaliation for making a discrimination complaint, they are not automatically insulated from all adverse employment actions, and can be held accountable for separate misconduct, as the U.S. Court of Appeals for the Eighth Circuit recently held.

In Thompson v. University of Arkansas Board of Trustees, a campus police officer complained to his supervisor of race discrimination by the police chief. He was terminated shortly thereafter, and sued, alleging retaliation in violation of federal anti-discrimination law. However, the employer explained that the termination was because the officer, who was the first responder to a call reporting an intoxicated man who was passed out and foaming at the mouth, failed to provide first aid, check vital signs, reposition, or continually observe the man prior to the ambulance’s arrival. As the Eighth Circuit stated, “Here, [the officer] failed to adhere to his responsibilities as a first responder, putting the intoxicated man at risk of death or severe injury. He need not have violated an enumerated ground or specific law-enforcement standard to be fired under the [disciplinary] policy.”

This case emphasizes several helpful points for employers. Employees can and should be held accountable for their misconduct, even where they have engaged in protected activity under federal or state anti-discrimination law – but the employer must ensure that they are treating the employee consistently with how it has treated others engaged in similar misconduct. In addition, employers are not limited to disciplining only for misconduct that is listed in a disciplinary policy, although we suggest it is helpful if the policy, like the one at issue here, contains language granting the employer discretion to impose discipline for serious issues beyond those listed in the policy.