• September 9, 2010

[UPDATE:  Originally posted in January, another correct Minnesota Litigator prediction, and another Plaintiff fares badly at the Minnesota Supreme Court (opinion here (Judges Page, Meyer, and Anderson, Paul, dissenting in two separate dissenting opinions)).]

Let’s say an employer (say, Capella University) terminates an employee (Elen Bahr) because, asked to perform some act, she refused, sincerely (but maybe mistakenly) believing that the action she was being asked to perform violated the Minnesota Human Rights Act.  Can she sue the employer for retaliation?

The issue was whether Plaintiff’s subordinate, a minority employee, was to be put on a “PIP,” or “performance improvement plan,” and Plainitff Bahr felt the employee should have been placed on a PIP but was not put on one because of her minority race.  Bahr alleges she was terminated, at least in part, due to her objection to this disparate treatment of this minority employee.

In considering whether a particular employee should be put on a PIP, if different employees might be treated differently, is this discriminatory and violative of the act?  Assuming not, would Bahr still have a claim for “reprisal” under the Minnesota Human Rights Act because she thought it was?  The Minnesota Supreme Court heard oral argument on this issue on January 5.

Chief Judge Magnuson gave plaintiff’s counsel a hard time on her proposition that any differential treatment of an employee constitutes prohibited discrimination.

Frances Baillon, of Halunen & Associates, argued for the plaintiff.  She faced a lot of hard questioning and I think we can predict reversal of the intermediate appellate court decision in her client’s favor.  Thomas Harder, Foley & Mansfield, PLLP, argued on behalf of Capella University.

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