In West Virginia, a mine roof bolter sued his employer for retaliation. He claimed his foreman painted his testicles white on two occasions allegedly because the worker complained of excessive exposure to coal dust.
The bolter was working on a continuous miner system. Because the coal dust created on the air return side exceeded the amounts allowed by the Mine Safety and Health Administration, the bolter complained to the foreman. Instead of conforming the coal dust exposure to the agency’s requirements, the foreman chose to fire him and spray his testicles with white paint.
The Supreme Court has previously held that any action on the part of the employer that would have been materially adverse to a reasonable employee could be retaliation under Title VII.
Employers should beware that in order to avoid retaliation complaints, they should not only refrain from firing the complaining employees, but also from painting any parts of them, among other things.