A nurse who spent years publicly calling her college racist asks one question at a staff conference: will HR have to take implicit-bias training? A week later, the HR vice president angrily confronts her. 

Is this retaliation? Not according to the 6th Circuit in Burton v. Centre College of Kentucky.

Cheryl Burton worked as a nurse at Centre from 2017 to 2023. She alleged that Black applicants were passed over for less-qualified white ones. She said so publicly, backed a student sit-in, and joined students demanding change. In 2021, she told HR VP Kay Drake she was quitting "to escape the culture of racism at Centre." Drake promised change and a raise, and Burton stayed. Change allegedly never came.

Then came an August 2023 conference and her question about HR and implicit-bias training. Drake allegedly came to her office and angrily asked why she felt the need to ask. The next day, VP of Student Life Barbara LoMonaco allegedly said Burton had "no right to have asked the question about implicit-bias training at the conference" and "we can't hire every black person that applies here." When Burton relayed her husband's warning that she'd become "a target," LoMonaco paused and said, "Well…" 

Retaliation requires a materially adverse action, one that could dissuade a reasonable worker from complaining. Two upbraidings were closer to "petty slights or minor annoyances." If two written reprimands fell short in an earlier case, two angry conversations do too. "Well…" was a veiled intimation, not a threat. And Drake had been receptive to Burton's earlier complaints, so her history didn't help.

Constructive discharge failed too. An employee "is obliged not to assume the worst." Quitting a day later, fearing things might deteriorate, doesn't qualify. Declining to reassure someone isn't announcing that the axe is about to fall.

The employer won this case because of what happened after the angry conversation—nothing. No reprimand. No schedule change. No extra scrutiny. Burton quit before any of that could start. 

Don't mistake that for a green light. A manager telling an employee she had "no right to ask" a question about race is a line a plaintiff's lawyer will happily read aloud. Add one real adverse action, and those comments become the opening act of a retaliation case. 

Train your leaders for the moment right after someone raises a race concern. The only good response is curiosity: what are you seeing, and what should we look at? Then write it down, and leave the employee's work life exactly where it was. 

A motion to dismiss is a great result. Better to never put your business in a position to need one.

     

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"WE'RE HIRING HOSTESSES!"

It's also a problem.

It's illegal to state a preference in a job ad that expresses a preference on one protected characteristic over another. This ad hands any man who isn't hired for the job "Exhibit A" in their sex discrimination lawsuit, and a pretty easy win.

Hostess isn't the only offender. Here are a few more that sound harmless: "Waitress," "busboy," "salesman," and "foreman." Swap in server, busser, salesperson, and supervisor.

"Young," "college student," and "recent college graduate" are all terms that deter older workers. "Digital native" invites the same argument.

"Able-bodied" is an ADA claim waiting for a plaintiff. If the job requires lifting 50 pounds, say so.

"Native English speaker" is also problematic. If the job requires fluent English, write fluent. Demanding a native speaker can read as national origin discrimination.

The fix is simple. Describe the job, not the person you picture doing it. List the duties, the physical demands that are actually essential, and the skills. Then have someone other than the author read the ad before it goes live.

One word won't sink a company. But it hands the EEOC or a plaintiff's lawyer an easy discrimination lawsuit, and it invites a closer look at everything else about how you hire. Cheap to fix. Expensive to explain.

Your job ad should describe the work. Let the applicant pool describe itself.

     

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"We need to terminate her." That's what the Director of Operations at Thomas-Grace Construction wrote the day after an employee complained about her supervisor. She called the complaint "BS."

The employer still won.

In Joseph v. Thomas-Grace Construction, the 8th Circuit affirmed summary judgment on Becky Joseph's Title VII sex discrimination and retaliation claims.

Joseph, a lead installer, complained about three different supervisors in under two months. She apologized in writing for misjudging the first. Her February 22 complaint about the second said he "want[ed] everything his way." It never mentioned sex. She first raised sex discrimination about him and a third supervisor on February 24, writing that "[t]he men are always right in the eyes of the company." That was the day after the "BS" email.

By then the Director had reversed course. She opened a formal investigation, asked Joseph for witnesses and documents, and interviewed four people. The investigation substantiated nothing. TGC offered Joseph a transfer to Connecticut at the same pay and benefits. She resigned and sued.

As for the "BS" email, Joseph didn't dispute that the Director changed her mind or that she got to present her evidence. The email also responded to a message about a supervisor's leadership style that never mentioned sex or discrimination.

Don't read this as a pass for ugly emails. TGC got lucky on timing. Send that same email after a complaint that actually alleges discrimination, and I'm far less comfortable defending it.

But the response is worth copying. When a complaint lands, stop. Investigate before you decide anything. Let the employee name witnesses and submit evidence. Document problems when they happen, even if you don't discipline. Then decide based on those records.

You can't unsend a bad email. You can follow it with a good investigation.

     

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In the hospital until 4 a.m. No sleep, because sleep was a risk. Then 40 pass attempts in London.

That's Jalen Hurts before and during the Eagles-Jaguars game, according to NFL Network's Ian Rapoport. The Eagles' own timeline starts with a cleat to the calf in a loss to the Rams. An ultrasound after the flight to London found a superficial clot, doctors cleared him to play, and he did. Days later a follow-up ultrasound showed movement in the clot. More testing found deep vein thrombosis and clots in both lungs, and he's out for the season.

The team hasn't said the cleat caused the clots. But it's a familiar workplace story: an injury at work, treatment, a return to work, and then something far more serious. In most workplaces, that runs through workers' compensation.

Comp is a bargain. The employee gets medical care and wage replacement without proving fault. The employer gets immunity from most lawsuits. In Ohio, comp is the exclusive remedy for almost all workplace injuries.

The first is the intentional tort. In Ohio, an employee can sue outside the comp system when the employer acted with deliberate intent to injure. Not carelessness. Not recklessness. Not even knowing the job is dangerous. But deliberate intent to injure, the deliberate removal of an equipment safety guard, or the deliberate misrepresentation of a toxic or hazardous substance. And because the claim is for an intentional act, don't count on insurance to pick up the tab.

The second is OSHA. Comp pays the injured worker. It doesn't pay OSHA. The two systems run on separate tracks, and carrying comp coverage doesn't shield you from a citation. And OSHA doesn't require intent. A serious violation needs only a hazard you knew about, or should have known about. For 2026, a serious violation costs up to $16,550. A willful or repeated violation costs up to $165,514, per violation. OSHA has six months from the violation to issue the citation. There's no insurance coverage here, either.

So when an employee gets hurt, the comp claim isn't the end of your analysis. It's the start. Ask what caused the injury. If the answer is a missing guard or a hazard someone already reported, you have bigger problems than the claim.

If you deliberately injure an employee, or ignore a hazard you knew or should have known about, it wont be workers' comp that has the final say. It'll be a plaintiffs lawyer, OSHA, or both.

     

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A Black employee emails the CEO about racism at work. Nine days later, the company fires her. How did she lose her retaliation claim?

Ebony Kelley, a Black airport customer service agent for Allegiant Air, was accused by a white coworker of calling her a racist during a breakroom spat over a computer.

Kelley denied it to HR, in an interview and in writing. Three witnesses said she did it.

On December 19, 2022, HR suspended her for dishonesty. Five hours later, she emailed Allegiant's CEO. Subject line: "Racism at pie international."

The CEO never responded. Allegiant fired her on December 28.

The 11th Circuit just affirmed summary judgment for the airline on her race discrimination and retaliation claims. The reason why is a lesson in how documentation can make or break an employment lawsuit.

The coworker's alleged "jokes" were ugly. But Kelley hadn't reported those particular remarks to HR or a supervisor until HR was investigating her. She said she "preferred peace." The court all but said the result might have been different had she spoken up before she was in the hot seat.

The discrimination claim failed because Kelley couldn't show a comparator or a convincing mosaic. Crediting three witnesses over the accused isn't suspicious.

The retaliation claim failed on but-for causation. The suspension predated the CEO email. And the court treated Kelley's dishonesty as an intervening act that severed the causal chain, so the close timing didn't help her.

Allegiant won because it did the unglamorous work. It investigated the original complaint, collected three witness statements, and suspended Kelley before the CEO email ever landed. And when Kelley raised her own allegations of racism, HR followed up on those, too.

Don't read this case as a license to ignore discrimination complaints that arrive during a disciplinary investigation. A racism complaint arriving the same day as a suspension is exactly the timing plaintiffs' lawyers love. Keep the original investigation on its own track, document the independent reasons for your decision, and investigate the new complaint on its own merits.

The complaint came too late. This employer won because its paper trail came first.

     

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