Last month, a Texas jury found that FedEx Corp. retaliated against a former employee and awarded the former employee $365 million in punitive damages, $120,000 for past pain and suffering, and $1.04 million for future mental anguish. The jury was apparently more disturbed about retaliation for reporting racial discrimination than the alleged discrimination, itself, finding no discrimination had occurred.

Jennifer Harris, an African American woman, started working for FedEx in 2007 as an entry-level sales representative. For nearly a decade, she was a rising star at the company, receiving several awards and 6 performance-related promotions. In 2010, Harris and her team reached the President’s Club, a prestigious accomplishment, and the following year, Harris ranked in the top 6% of sales at FedEx nationwide.

Despite these achievements, in March 2019, Harris’s manager asked Harris as well as several other non-African American employees to take demotions. Harris reported her supervisor’s request to human resources, claiming racial motive and discrimination.  Three months later, her supervisor disciplined Harris for “unacceptable performance”, though her performance was still strong.  Harris attributed whatever performance issues existed to her manager sabotaging her commission structure.

In August 2019, Harris again reported her manager for discrimination and retaliation because the manager had not assigned a certain customer to her.  A written warning from the manager about Harris’ performance followed the next month.  Harris said FedEx subsequently conducted a sham investigation of her claims and terminated her in January 2020.  Harris filed the suit in May 2021 alleging that FedEx discriminated against her for being African American and fired her for opposing discrimination in the workplace.  According to the complaint, the only difference between Harris and her colleagues was Harris’s race.

At trial on October 25^th, the jury found that FedEx retaliated against Harris because of her initial claim of racial discrimination and that the company failed to act in good faith following her reports.  In its 8K filing with the SEC, FedEx has indicated it will seek a judgment notwithstanding verdict from the trial court and failing that, appeal the verdict.  FedEx has also indicted that it believes up to $75 million of the verdict is covered by insurance subject to a $10 million retention.

The jury’s verdict demonstrates that retaliation in a workplace can be just as important if not, more so, than the alleged discriminatory act. If an employee files a complaint as to any form of discrimination under Title VII, with Human Resources Department of a company, it should be taken seriously and fully investigated. However, an employer also has to monitor for behaviors that can be considered retaliatory against that employee, to the extent the complaint is known by others – in particular that employee’s supervisor as was the case in the case involving Harris v FedEx Corp.

The EEOC provides tools for employers to use in order to stay in compliance with anti-harassment, discrimination, disability and other federal protection statutes. Some practical tools include the following:

• Anti-harassment policy tips:
  • State that harassment based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history) is illegal and will not be tolerated. Providing your employees with definitions and examples of such prohibited conduct would be good training and reminders for their every day’s work environment and treatment of each other.

 

• • Explain how employees can report harassment or discrimination.
    • If possible, designate at least one person outside an employee’s chain of command who can receive harassment complaints.
    • Consider permitting employees to report harassment or discrimination to any manager.

 

• • State that you will protect the confidentiality of employees who report harassment or participate in a harassment investigation, to the greatest possible extent.

 

• • State that employees will not be punished for reporting harassment (or discrimination) or participating in a harassment investigation or lawsuit.

 

• • Require managers and other employees with human resources responsibilities to respond appropriately to harassment or to report it to individuals who are authorized to respond.

 

• • Provide for prompt, thorough and impartial investigation of harassment complaints.

 

• • Provide for prompt and effective corrective and preventative action when necessary.

 

• • Consider requiring that employees who file internal complaints be notified about the status of their complaint, the results of the investigation and any corrective and preventative action taken.

 

• • Describe the consequences of violating the harassment policy.

 

• • If a complaint of discrimination is made, that employee should still be treated the same as other employees in terms of performance evaluations, and supervision of their work. If performance issues should arise with an employee who has a pending discrimination complaint, then the protocol established for disciplining and documenting that performance issue should be followed, as if that employee had not made a complaint. Treating employees fairly and evenly is always best policy for an employer.

 

Employers can also encourage annual training sessions and reviews of their employment policies/employee handbook to continually remind and encourage a work environment that allows for complaints of discrimination to be made confidentially, investigated and resolved without adding an additional layer of investigation involving retaliation by other employees for that complaint.

The attorneys in our Austin and Dallas offices routinely assist clients with employment-related questions.  Please contact us at info@gstexlaw.com with any questions you may have.

 

Legal Disclaimers

This blog is made available by Gerstle Snelson, LLP for educational purposes and to provide general information about the law, only.  Neither this document nor the information contained in it is intended to constitute legal advice on any specific matter or of a general nature.  Use of the blog does not create an attorney-client relationship with Gerstle Snelson, LLP where one does not already exist with the firm.  This blog should not be used a substitute for competent legal advice from a licensed attorney.

©Gerstle Snelson, LLP 2022.  All rights reserved.  Any authorized reprint or use of this material is prohibited.  No part of this blog may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system without the express written permission of Gerstle Snelson, LLP.