This week, a Case Western Reserve University Law Professor filed an interesting retaliation lawsuit in Cuyahoga County Common Pleas Court against the school and its Dean. The lawsuit reminds us that employees are protected from retaliation for complaining about discrimination, even if they are just a witness to the discrimination, rather than its victim.
Professor Raymond Ku is a well-respected legal scholar at Case. He alleges that while serving as Associate Dean for Academic Affairs—the law school’s second-highest position—he reported his boss, Dean Larry Mitchell, for sexually harassing a staff member. Ku did not claim to be sexually harassed himself. From that point on, Ku claims, Mitchell began a campaign of mistreatment against him. Among other things, Ku claims Mitchell: stopped talking to him directly; gave him busywork; effectively forced him to resign as Associate Dean; cut his pay; and, stripped him of his co-directorship of the school’s Center for Law, Technology & the Arts. Case Western issued a statement denying the allegations, although its formal legal response won’t be due for another month or two.
Both Ohio law and the federal employment discrimination laws forbid retaliation against employees who engage in “protected activity.” Without getting overly technical, “protected activity” is complaining of employment discrimination or cooperating with an investigation into employment discrimination. Significantly, an employee who witnesses discrimination against others and then complains is protected, even though the employee is not the actual victim. If the complaint ultimately proves to be meritless, the complaining employee is still protected, as long as there was a good faith basis to complain.
If an employee engages in protected activity, employers cannot retaliate in response, if the actions taken would dissuade a reasonable person from complaining in the future. The most obvious example of retaliation is firing an employee who complained of discrimination. Other non-exhaustive examples of illegal retaliation include demotions, pay cuts, and denial of advancement opportunities.
It’s too early to pass judgment on the allegations in the Case Western lawsuit. If true, however, some of actions taken against Ku would be illegal retaliation. If Mitchell cut Ku’s pay or denied him raises because he complained, that would certainly be illegal. It would also be illegal if Mitchell demoted Ku from his co-directorship because of the complaint. Other allegations—such as Mitchell giving Ku busywork and not talking to him—may qualify as unlawful retaliation, but it’s less obvious.
No matter how Ku’s lawsuit turns out, there are two important takeaways for employees. First, employees who complain of discrimination are protected from retaliation. Second, the complaining employee is protected, even if only reporting discrimination against others. So when you see illegal discrimination in the workplace, speak up.