As the previous article states, written disciplinary warnings are not adverse employment actions upon which a discrimination claim may be based. However, last month, the Seventh Circuit Court of Appeals concluded that the same warnings can serve as an adequate basis for a retaliation charge under the same statutes.

In Benuzzi v. Bd. of Educ. of the City of Chicago, the plaintiff was a school custodian who had a long history of disputes with the school principal. These conflicts resulted in the custodian filing a sex discrimination lawsuit against the principal and school board. Despite a recent positive performance review, within a few days of being served with the lawsuit, the principal issued a written disciplinary notice to the plaintiff. The day after the principal was deposed in the matter, she issued the plaintiff another lengthy disciplinary notice, including several instances that occurred months ago.

The Seventh Circuit remanded the case for trial, concluding that the disciplinary notices served as adequate grounds for the plaintiff's retaliation claim, even though they did not result in any adverse action, or tangible change to the terms or conditions of her employment. Under the Burlington Northern standard, the principal's alleged actions were sufficient to deter an aggrieved party from pursuing a discrimination claim against her employer. The timing of the notices, and the fact that they included older allegations created a jury question on the principal's motivation behind their issuance.

This case demonstrates how a fairly weak discrimination claim can become a stronger retaliation case due to a manager's reaction to the initial allegations. The court dismissed the original discrimination claims, finding that there was no evidence that the personality conflict was motivated by gender. Despite the lack of merit of the original claims, the principal's reaction resulted in a jury trial on the retaliation grounds. Courts and juries impose harsh penalties for retaliation, and even lower level actions such as written warnings can result in significant defense issues for employers.