When faced with an employee complaining about their treatment at work, supervisors sometimes believe that the employee attributes criticism of job performance to his or her membership in a protected category rather than focusing on the substantive performance issues. A recent Seventh Circuit Court of Appeals case shows that employers should exercise caution before taking disciplinary action against an employee based on these suspicions.

In Burnell v. Gates Rubber Co., an African-American employee habitually complained to management about his treatment at work and his relations with white co-workers, always attributing these issues to race discrimination. During a disciplinary meeting regarding the plaintiff's refusal to follow the directions of his supervisor, a white manager accused him of always "playing the race card" when confronted with problems at work. After being terminated, the plaintiff sued, alleging race discrimination and retaliation.

On appeal, the Seventh Circuit reversed a grant of summary judgment to the employer on the retaliation claim. The court concluded that the plaintiff's habitual complaints of race discrimination were protected activity under Title VII. The manager's "race card" comment made during the meeting that led to his termination indicated that the employer was possibly motivated by displeasure over the plaintiff's complaints. This was sufficient evidence to allow a jury to determine whether the plaintiff had been retaliated against.

Employers frustrated by what they perceive as repeated and baseless complaints of discrimination cannot give into the temptation to lash back at the complaining employee. Absent clear and convincing evidence of bad faith on the part of the complaining worker, merely unsubstantiated and misguided claims of discrimination cannot form the basis for subsequent disciplinary action by the employer. In such cases, the employer risks turning those baseless discrimination claims into a viable retaliation lawsuit. Employers must take the high road in such situations, by fairly investigating and responding to employees' discrimination claims regardless of the employer's initial view of their merit.