Many times in life, things are not necessarily what they seem on the surface. That can be true in the law, too. Your discrimination, harassment, or workplace retaliation case might, to some, not seem like much on the surface but, in the eyes and hands of a skillful Atlanta employment retaliation lawyer, it might become something more — a much clearer violation of employment law and a powerful claim for relief.
One scenario occurs when an employer’s adverse action, in a vacuum, seems permissible but, when viewed in the larger prism, demonstrates an inconsistent application of its policies motivated by illegal retaliation or discrimination. A real-life case from outside Georgia offers a clear illustration of this.
The employee, A.W., was a man displeased with the new overtime policy his employer had unilaterally instituted, which called for the posting of a sign-up board upon which workers signed up for overtime shifts. Workers who signed up for a shift and then did not work the shift faced potential discipline, which was a change from the old rules.
Several upset workers protested by refusing to sign up for overtime shifts, which negatively impacted production. Some employees also began referring to the sign-up board by a very crass two-word nickname. A.W. went one step further, writing that two-word phrase at the top of the board itself. The employer investigated, A.W. admitted to it, and the employer fired the man.
On the surface, this might seem like a completely permissible action by the employer, but it wasn’t. It actually amounted to a possible instance of illegal retaliation.
In this case, there were two key reasons why the employer’s defense arguments failed. One was that A.W.’s writing was a protected activity. In any successful retaliation case, you’ll need to demonstrate that the thing you did (that motivated your employer to take adverse action against you) falls within the confines of what the law considers “protected activity.” Forms of protected activity can include opposing discrimination or harassment or participating in an investigation or action related to discrimination or harassment. That’s true whether you or someone else was the target of the underlying discrimination or harassment.
In other situations, opposing a change in employer policies may, in some workplaces, be protected activity, too. Vulgar though A.W.’s phrase might have been, writing it on the board nevertheless represented a form of protest against the policy, and therefore a protected activity.
Inconsistent Application of Company Rules Was Powerful Proof for the Employee
The second, and arguably larger, point is that proof of inconsistent discipline can be a “game-changer” in terms of making a case for retaliation. Multiple of A.W.’s coworkers had for months used the vulgar two-word phrase to refer to the sign-up board, and the employer had tolerated it, handing out no discipline to the employees who used the phrase until it fired A.W.
Additionally, the evidence showed that the employer routinely permitted other forms of “profane, vulgar, and even harassing language” at the plant — sometimes over the facility’s internal radio system — and took no action until it “singled out” A.W.
That, according to the appeals court, was crucial to the outcome. The employer’s “failure to enforce its code of conduct or anti-harassment policy dooms its assertion,” the court wrote in ruling against the employer.
Many times, there’s more to your case that appears to exist at the surface. Those things not noticeable to the untrained eye may be the things that are your keys to success. If you’ve been harmed as a result of workplace discrimination, harassment, or retaliation, get in touch with the knowledgeable Atlanta employment retaliation attorneys at the law firm of Parks, Chesin & Walbert to find out how we can help you. Contact us through this website or at 404-873-8048 to schedule a consultation.