Retaliation May Occur Even If the Employee Is Unaware of It


In a warning to employers, the U.S. Court of Appeals for the Eleventh Circuit found that an employer’s actions could constitute illegal retaliation for an employee’s discrimination complaint, even if she did not know of it.

In Smith v. City of Pelham, an employee filed a discrimination complaint against her supervisor. Less than a week later, he ordered a forensic search of her work computer. The search revealed nude pictures of the employee and others (which were apparently downloaded by accident when she connected her phone to her computer for work reasons), as well as evidence that she was using the computer to work a second job. She was then terminated for violation of the City’s computer use policies. She sued, alleging, among other things, retaliation for her discrimination complaint. The trial court dismissed her claims, finding that there was no retaliation since the employee did not know of the search.

As the Eleventh Circuit noted, Title VII prohibits an employer from retaliating against an employee for opposing an unlawful employment practice, such as by filing a discrimination complaint. Retaliation includes any adverse action that might dissuade an employee from making or supporting a discrimination complaint. And, according to the Eleventh Circuit:

To hold that an action cannot be adverse if the employee is unaware of that action is without legal support. And that logic does not make sense when applied in other scenarios. For example, what if an accused supervisor, who is aware of an internal complaint of discrimination against him, blackballed the complaining employee so that she was then excluded from certain workplace privileges, like a promotion, a bonus, a favorable transfer, etc.? Is it fair to then say that no retaliation occurred because the employee was unaware that the supervisor was tarnishing her reputation on the sly?

The court further noted that there seemed to be no real basis for the search, and that the supervisor had no explanation for why he failed to follow the progressive disciplinary process. The fact that the search resulted in the discovery of the employee’s misconduct did not excuse the retaliatory nature of the search in the first place.

This case provides a good reminder to employers – and more specifically, managers and supervisors – to be careful when dealing with employees who have, rightly or wrongly, asserted good faith claims of discrimination or harassment. Any actions that are taken that may result in discipline or even termination should be based on legitimate reasons and consistent with how other employees are/have been treated. And the fact that an employee may not know of the action does not prevent it from being retaliatory.