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How to Avoid Retaliation Claims - A Potential Landmine for Employers

By Joseph M. Gagliardo
Posted: 8th May 2013 09:31
Retaliation in the employment context is the unlawful “payback” by an employer for something lawful the employee did.  These paybacks can cost an employer big headaches, and big money.  Retaliation charges, usually brought in tandem with other charges of discrimination, are the most common type of employment claim against employers, and comprised 38.1% (37,836 charges) of the total number of charges filed with the Equal Employment Opportunity Commission (“EEOC”) in fiscal year 2012.  In addition, the EEOC successfully recovered $177.4 million in monetary benefits from retaliation charges in fiscal year 2012.  Retaliation claims have consistently increased from year-to-year to the point where retaliation is now the number one complaint filed with the EEOC.
Elements of a Retaliation Claim
An employee may establish a prima facie case of retaliation by either the “direct” or “indirect” method of proof.  In order to establish a retaliation claim under the direct method of proof, an employee has to offer evidence that: (1) they engaged in statutorily protected activity by opposing discrimination; (2) they were subject to an adverse employment action; and (3) a causal connection exists between the statutorily protected activity and the adverse employment action.
The indirect method of proof requires the employee to show that he or she: (1) engaged in statutorily protected activity by opposing discrimination; (2) performed the job according to the employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than other similarly situated employees who did not engage in statutorily protected activity.
Retaliation Claims Are Often Easier To Prove Than Discrimination Claims
Retaliation claims are easier to prove than discrimination claims because: 1) it may be easier for an employee to prove they were punished for complaining than to prove the underlying discrimination claim; 2) an employee does not have to prove that discrimination took place in order to establish a retaliation claim; 3) employees can establish an adverse employment action for employer conduct that does not rise to the level of a demotion or termination; and 4) juries often seem more willing to believe that managers are capable of retaliation than they are of discrimination.  Juries oftentimes believe that because an employer does not like it when an employee stands up and speaks out, the employer strikes back.  And, those same jurors will often have known someone who was treated badly for reporting or complaining about something in the workplace.  As a result, retaliation cases have resulted in significant jury verdicts.
U.S. Supreme Court Retaliation Cases
In addition to Burlington Northern & Santa Fe Railway v. White (held unlawful retaliation occurs whenever the adverse action would have the effect of discouraging a “reasonable employee” from making a discrimination complaint); Kasten v. Saint-Gobain Performance Plastics (held the Fair Labor Standards Act’s anti-retaliation provision protects employees who make oral complaints even through the provision refers only to employees who have “filed” a complaint); and Robinson v. Shell Oil Co. (held who is an “employee” under Title VII should be read broadly to include former employees), the U.S. Supreme Court has recently decided a case where a third party filed a retaliation claim.
In Thompson v. North American Stainless, LP, Eric Thompson and his fiancée worked for the same employer.  Thompson was fired, allegedly for performance-based problems, three weeks after his fiancée filed a discrimination charge with the EEOC.  The Supreme Court found that Title VII’s anti-retaliation provisions must be construed broadly to encompass any employer action that might dissuade a reasonable worker from making or supporting a charge of discrimination.  Although the Court refused to identify a fixed class of relationships for which third party reprisals are unlawful, it noted that firing a close family member will almost always rise to that level, “while a milder reprisal on a mere acquaintance will almost never do so.”  Rejecting the employer’s argument that Thompson was not a “person aggrieved” under Title VII, the Court applied the “zone of interests” test, which allows suit by any plaintiff “with an interest ‘arguably [sought] to be protected by the statutes,’” and concluded that Thompson fell within the zone of interest protected by Title VII because that statute is intended to protect employees such as Thompson, from unlawful acts by their employers.
2012-13 U.S. Supreme Court Case
On April 24, 2013, the U.S. Supreme Court heard oral argument in Nassar v. University of Texas Southwestern Medical Center.  The Court will decide whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
Steps Employers Can Take to Minimise/Avoid Retaliation Claims
1. Implement a clear, written anti-retaliation policy that is strictly enforced and which: a) explicitly prohibits retaliation; b) states that anyone found violating the policy will be subject to discipline; and c) lists the procedure for employees to report incidents of retaliation.
2. Train managers so they clearly understand their responsibilities. Managers should be reminded that they may be subject to individual liability for retaliation and the training should also emphasize that employees who make complaints (and those who cooperate in investigations) may raise allegations of retaliation.
3. Remove the authority of any alleged discriminator to make employment decisions concerning the complaining employee.  If possible, the employer should require upper level managers to independently review employment decisions concerning the complaining employee.
4. Promptly investigate and resolve employee claims.  To the extent possible, investigations should be kept confidential and the number of management personnel involved in an investigation should be kept to a minimum.  Providing interviewees and others involved in the investigation only the information they need to know will ensure a more effective investigation.
5. Follow-Up with complaining employees.  Following up with complaining employees and monitoring complaining employees’ working environment for several months after the employer has concluded the investigation helps to reduce the likelihood of retaliation.
6. Implement and follow a neutral reference policy.  Both current and former employees may file a retaliation claim.  If an employer provides only a neutral reference, neither current nor former employees will be able to show that an employer’s negative reference has hampered efforts to find a new job.
7. Document claims, investigations, employee performance, and other employment actions.  Proper documentation not only aids employers in more effective communication with employees, but in those instances where a retaliation claim leads to litigation, proper documentation provides better evidence for the employer and could, depending on the circumstances, mean the difference between winning and losing a lawsuit.
Although the job market continues to show signs of improving, both current and former employees continue to file retaliation charges in record numbers.  Employers must continue to do everything they can to minimise the likelihood that a current or former employee will file a retaliation claim.  By developing and implementing procedures that protect employees from discrimination and retaliation, employers will help themselves from becoming a retaliation statistic.

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