Retaliation and You: Does It Apply to Your Situation?

 

Today's article that inspired this post is found here. Oregon's General Counsel for its public defender agency was accused of retaliating against two female public defenders by decreasing their payments and potentially keeping a third from starting work for the agency. An independent investigator found that "cut reimbursement rates or bad-mouthed the women in retaliation for their criticism of him or the state agency." One of the women had asked for a raise for providing representation for serious felonies and was denied by the General Counsel in a decision described by the investigator as "arbitrary at the least."

The complaints seem to have been related to pay inconsistency between men and women. Oregon undertook an investigation (separate to the investigation above) beginning in 2021 to look into the issue. The investigator ultimately found that even though "there has been considerable inconsistency in how attorneys are paid," there were several non-discriminatory reasons for the differences. For example, many men who made more money had applied for exceptions to the pay policy, but relatively few women has applied for the exceptions. However, most women reported that they had no idea that asking for more money was even an option.

Issues

Retaliation is a catch-all term that implies actions taken in response to something. However, what is frequently misunderstood is the concept that most retaliation is legal. For example, if Jan does poor work, can her (male or female) boss retaliate against her by refusing raises or promotions? Of course the boss can act in that way. Retaliation is only illegal when it comes in response to a protected activity.

What is a protected activity? The Equal Employment Opportunity Commission defines a protected activity as: "Generally, 'protected activity' is either participating in an EEO process or reasonably opposing conduct made unlawful by an EEO law." In other words, complaints (or similar action) about discrimination of a protected class or broadly civil rights.

What Happened to the General Counsel of the Public Defense Agency in Oregon?

Ultimately, not much. The Oregon Public Defense Commission director sent him a letter of "expectations" rather than take disciplinary action. It said, in part: “When replying to correspondence, do not retaliate or give the perception of retaliation. If you are not sure about the tone, or response, reach out to me for review.”

The investigation has been criticized as having reached the wrong conclusions, finding that the conduct was based on a "personality conflict." One of the accusing women, Rachel Philips, who is a public defender in Portland, stated: "[He took] all these deliberate actions for no reason other than he just didn’t like them,” she said. “He’s facing zero consequences.”

I wonder if the reason for the lack of action is because he's in a job that no one wants. Reportedly, he was hired in December 2016 and quickly promoted to the top because others left the agency. He was described as: "a pocket of stability in a chaotic agency, and the more staff turnover the worse."

My Take

I agree with Ms. Philips and disagree with the investigator. In my view, the complaints were about discrimination in the form of pay based on sex. The actions took were clearly retaliatory. I'm not sure that this is a close call.

If I were one of these women, I would likely file a lawsuit.

Takeaways

Don't be like the General Counsel in this article. I understand that not many people get paid the same amount in most companies. That's just life. But if there is a systemic issue where one sex gets paid more than another routinely, it's a problem.

And if someone complains about a potential issue like that, please don't retaliate against them. It's the wrong thing to do and it places your company at risk.

 

This article initially appeared on LinkedIn.