500,000 reasons to worry about retaliation claims

Good news, you're thinking. Your company's just been sued for sex discrimination, but your lawyer tells you that her discrimination claim stinks. You're almost certainly going to beat it. W00t! Squee!

Not so fast with your w00ts and your squees. As employment lawyers, we see this scenario play out far too often. Company gets hit with a weak discrimination claim. Turns out something bad happened to the plaintiff after he or she complained about the bogus discrimination. Wa-bamm! Now the company's stuck defending a much stronger retaliatory-discrimination claim.

This happened the other day here in Boston. The state's Probation Department faced a sex-discrimination claim (among other things) from an assistant chief probation officer. The case went all the way to a jury trial, which is unusual (less then one percent of these cases try). The Suffolk County jury found in the Department's favor on the sex-discrimination claims, but ruled for the plaintiff in her retaliation claim. It awarded her $6,000 in compensatory damages, and … wait for it … half a million dollars in punitive damages. Plus, now she's entitled to her attorneys' fees.

Now to be fair, the Probation Department has been having a bad year as the subject of daily newspaper stories about corruption and patronage. (For The Boston Globe's extensive coverage, click here.) But the lesson is still an apt one. In this case, after the employee complained of sex discrimination, she was stripped of supervisory duties and reassigned to cover the front desk. In its defense, the Department said that her performance had declined. Maybe it had. But that's a weak defense in a retaliation claim. (For more coverage of the case, see Marcella Bombadieri's piece in the Globe.)

Employers: When you're facing a potential discrimination lawsuit, you have to be extra careful to avoid doing something that could end up giving the employee a much stronger retaliation claim. It's a delicate situation to be in, but the wrong actions by the employer can be just the thing that the plaintiff needs to end up with a windfall.

For tips on how to treat a complaining employee, tweet or direct-message me at @jayshep, or send me an