Can Denying a Raise Be Retaliation under the ADA?

"Yesterday’s Advisor covered new guidance concerning Title VII and how it applies to domestic violence, assault, and stalking; today, the ADA story, plus an introduction to the all-compensation-in-one-place problemsolver,"

An example of a potential ADA violation would be an employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest who requests reasonable accommodation. Her supervisor then tells the employee’s co-workers about her medical condition.

The employee tells the supervisor she intends to complain to HR about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.


‘Only Women Can Be True Victims of Domestic Violence’ (Your Manager?)

"Although domestic violence, sexual assault or stalking didn’t make “the list” of protected categories, there are still instances where such behavior—or managers’ attitudes—can violate Title VII and the ADA."

DOL’s  recently released Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking, offers examples of employment discrimination and retaliation that may be overlooked.

What are some examples of employment decisions that may violate Title VII and involve applicants or employees who experience domestic or dating violence, sexual assault, or stalking?


Same Pay, Same Title, Still Retaliation

"Retaliation suits are EEOC’s top suits, and Attorney Judith A. Moldover says HR and compensation managers have an "incredible role" in sparing their organizations the expense those suits invariably bring—even if you "win" them."

In one case, an HR manager who reported to top management made a complaint. Soon thereafter he lost all his staff, was moved to another area, and found himself reporting to a middle manager. His new boss said to him, "I don’t know why they sent you to me. I don’t have anything for you to do." The manager kept his pay and his title, but the courts found that the action was an adverse action.


Complain About Me? No Raise for You!

"Preventing retaliation is a balancing act, says Attorney Judith A. Moldover. You've got the manager storming around, saying "I'm going to get this person." And you've also got a complaining employee who is strutting around thinking he or she is bulletproof because of raising a protected complaint."

Find the balance, Moldover says. When you get wind of a manager’s action that might be retaliatory—like denying a raise—put the situation in context and try to view it from the employee’s perspective.

Context Matters

With retaliation, context matters, Moldover says. Of course, no one’s going to be happy about losing a raise, but a lot of retaliation is not so obvious. Take, for example, a schedule change. One person might not care at all, while another might care a great deal. For instance, a single mother with a carefully arranged daycare schedule might find a schedule change adverse if she has no other options.


Hostess’ Demise? Due to Sad Lack of Trust

"t’s a sad day for me, says business and leadership blogger Dan Oswald. Hostess Brands, the maker of Twinkies®, Ho-Hos®, and Ding Dongs®, is going out of business. While my midsection may not look like it, I haven’t had a Twinkie—or any other Hostess product, for that matter—in more than 30 years. But I hate to see them go, he says."

Oswald, CEO of BLR, offered his thoughts on trust (and Twinkies) in a recent edition of The Oswald Letter.


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