If It Walks Like A Duck and Quacks Like a Duck…..

On March 10, 2010, a Manhattan jury awarded baker Moises Mendez, a 46 year old immigrant from Ecuador,  $3,000,000.00, for his retaliation suit against his employer, Starwood Hotels.     Mendez had repeatedly filed complaints with his human resources department alleging discrimination against him based upon his national origin (Ecuadorian) and race (Hispanic).   Following his complaints, his employer secretly installed a hidden camera in a smoke detector near his work station, presumably in an effort to catch Mendez violating work rules to justify a termination.  The jury awarded Mendez $1,000,000.00 for emotional pain and suffering and $2,000,000.00 in punitive damages.

We are all used to the classic “complaint of discrimination followed by termination” scenario. Employees are protected from this type of retaliation under Title VII, The Age Discrimination In Employment Act, The American with Disabilities Act and a host of other federal and state laws designed to protect employee rights.  But retaliation can take many more subtle forms.   If an employer can provide a justification for a termination (smoking in a non smoking area in violation of company policy), it can distance itself from the causal connection between the complaint of discrimination and the retaliation.    But, even if the action taken by an employer in response to a complaint of discrimination is not disciplinary, it may still be retaliatory.   When an employee complains of discrimination or harassment in the workplace, the employer is obligated by law to investigate the complaint.      If the employee suddenly finds himself the target of unfair treatment or increased disciplinary action, the employer may be liable for unlawful retaliation.  Starwood tried to catch Mr. Mendez in the act of violating a company rules.  But the secret camera was installed only after he made repeated complaints of unlawful discrimination.  If it walks like a duck…