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I was so naive! I never thought that I'd be subject to retaliation! My first experience with sex discrimination on the job happened in 1975 with the birth of my second son. I was teaching social studies in Duluth, Minnesota at the time. After he was born, I applied for 12 days of accrued sick leave pay. It was denied and my paycheck was docked the 12 days of pay. I was told that I had to take those 12 days as maternity leave without pay. It sure didn't seem fair to me when I had over 30 days of sick leave accumulated. Besides, I needed the money. So I filed a grievance and then a complaint with the Minnesota Department of Human Rights.
I won and got my 12 days of back pay. But throughout that process, all parties, including the Duluth Superintendent, the Duluth School Board, and the Duluth Federation of Teachers behaved in the most professional manner. There was never any question of hard feelings or retaliation. The issue was treated with an acceptance and inevitability as if the concept of paid leave for the childbirth was an idea whose time had finally come. I just happened to be the person to come along and insist on what was fair. Nothing about that Duluth incident prepared me for the kind of retaliation I would encounter more than 20 years later. In 1990, I won a unanimous jury decision in federal district court decision on discrimination. I filed this suit after I applied for the position of high school principal and was told, "If you were a man, you'd have had the job." In 1992, injunctive relief from that victory opened the job of principal. In 1997, after 5 successful years as principal, I applied for the open position of school district superintendent. Not only was I passed over for the position, but I was excluded from any other promotion in that district. These decisions were all made in secret, behind closed doors. I paid little attention when I was first warned about possible retaliation in 1986. That warning came from my attorneys when I filed the original lawsuit. They warned that if I filed this lawsuit, my career in public school administration would be over. They said that the informal "boys network" would take me out, a blacklisting of sorts. I never gave that warning a second thought. Professionals don't behave this way, do they? In 1997, I paid a lot of attention! It was clear to me, and later confirmed by an EEOC investigation, that those hiring decisions were made behind closed doors specifically to exclude me from any opportunity for those positions. So I filed a second lawsuit in federal court. That's when the retaliation began in earnest. In my position as K-12 principal from 1997 on, every initiative I attempted was thwarted one way or the other by the central office. In 1999, I received my first negative evaluation in 30 years. The word "seditious" was used to describe my attention to rules, laws and statutes! Then the superintendent made me an early retirement offer - tried to buy me out. When I stuck it out, the district transferred me the next year to another school further from my home. It was a deliberate, retaliatory transfer. Shortly thereafter, the district made a significant salary proposal to our bargaining unit, which was tied to my retirement at the end of the end. Nobody got the big bucks unless I retired. The old divide and conquer strategy! When I did retire in 2001, I was denied extra health insurance benefits, which had been given to the male principals who retired before - and after me. The variety of experiences I had with harassment and retaliation are described in Plaintiff Blues. Lesson Learned: Retaliation is very common. It is the easiest and cheapest response for an employer when an employee complains about discrimination. Lesson Learned: Retaliation can come in many forms, most of them more subtle than outright termination. Retaliation I experienced after my 1997 discrimination complaint included my first negative evaluation, pressure to retire early, divide and conquer attacks on our bargaining unit, involuntary transfer, denial of fringe benefits that other similarly situated men got, with lack of administrative support and nuisance assignments scattered throughout. Lesson Learned: Retaliation can be very difficult to prove. Employers and supervisors don't announce their intention to retaliate. So direct evidence of retaliation is very hard to find. Unfortunately until 2003, most federal courts required direct evidence in discrimination cases. However, with the 2003 Desert Palace V. Costa decision, the Supreme Court established that circumstantial evidence is equally as probative of discrimination. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence. Lesson Learned: Unfortunately, until 2006, the courts have not been supportive to victims of retaliation, unless the adverse action by the employer resulted in dismissal. My challenge on the retaliation listed above hit the federal court in 2001, 5 years before the Supreme Court in the Burlington Northern Santa Fe v. White case. In Burlington, the court finally established the precedent that any adverse employment action that might dissuade a reasonable worker from complaining about discrimination would count as retaliation. This is critical because the entire concept of our civil rights against discrimination depends on individuals' willingness to complain. Lesson Learned: The employee on the receiving end of retaliation because he/she complained about discrimination is not the only victim of those acts of retaliation. There is a chilling effect on all other employees. They will be reluctant to help in any investigation and unwilling to file a complaint of their own. Why? Because they can see what happens to those that do! I describe in detail this kind of chilling effect on my colleagues in Plaintiff Blues. Lesson Learned: Once my supervising superintendent's retaliatory bent was widely know throughout the district, everyone shut up. Channels of communication shut down. The governing school board lost access to any other source of information. Retaliation can have a chilling effect not just on individuals, but also on entire institutions. http://www.supremecourtus.gov/opinions/02pdf/02-679.pdf This is the 2003 Desert Palace v. Costa Supreme Court Decision http://www.supremecourtus.gov/opinions/05pdf/05-259.pdf This is the 2006 Burlington Northern Santa Fe v. White Supreme Court Decision http://www.eeoc.gov/types/retaliation.html http://www.eeoc.gov/policy/docs/retal.html http://www.revisor.leg.state.mn.us/bin/getpub.php?type=s&year=current&num=363A.15 |
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