Legal Eagle Eye Newsletter for the Nursing Profession (6)11 Nov 98


   Quick Summary: An employer cannot retaliate because an employee speaks out against discrimination, or makes charges of discrimination, or testifies or assists another in investigating or filing charges of discrimination.

   An employer cannot retaliate after the fact, even if a human rights agency or a court has ruled that the charges of discrimination were not well founded. UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT, 1998.


   A nurse sued her employer in 1995 for disability discrimination. In her suit she claimed her employer failed to offer reasonable accommodation to her respiratory disability by refusing to limit her work assignments to portions of the facility which were completely smoke-free. That lawsuit was dismissed in 1996, for reasons the U.S. Circuit Court of Appeals for the Sixth Circuit did not elaborate upon in its 1998 opinion.

  After the nurse’s 1995 lawsuit was dismissed in 1996, she could still be a victim of retaliation. The court pointed out that employers are banned from retaliating against an employee who files or assists another with a discrimination claim. Retaliation is illegal, whether or not the original discrimination claim was a valid claim.

   That being said, the court believed there were other problems which legitimately accounted for the employer’s negative attitude toward this nurse, rather than a motive to retaliate. Walborn v. Erie County Care Facility, 150 F. 3d 584 (6th Cir., 1998).