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After Supreme Court decision, what you must do to prevent retaliation

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in Discrimination and Harassment,Employment Law,Performance Reviews

by Meghann Kantke and Abigail Crouse, Esqs.

Miriam and Eric both worked for the same company. They were also engaged. Then, Miriam filed an EEOC sex discrimination charge against their employer. Three weeks later, the company fired Eric. Can Eric claim his termination was in retaliation for his fiancée’s charge, though he himself did not engage in any protected activity under Title VII?

Yes, answered a unanimous Supreme Court in late January.

An ‘obvious’ case

In Thompson v. North American Stainless, the court reaffirmed that Title VII prohibits “any employer action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” It held that Title VII’s anti-retaliation provision extends, in some cases, to reprisals against a third party.

To the Supreme Court, it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancé would be fired.”

Note: Under Minnesota law, reprisals against an employee’s fiancé are likely prohibited, too, because the Minnesota Human Rights Act protects employees from discrimination and retaliation on the basis of their marital status.

Who does Thompson cover?

But the Thompson decision’s reach is far from clear. In its decision, the Supreme Court “decline[d] to identify a fixed class of relationships” that are close enough to form the basis for a cause of action for third-party reprisal.

It said, “We expect that a close family member will almost always meet the … standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

Between “close family member” and “mere acquaintance” are innumerable relationships. Which ones are close enough to form the basis for a reprisal claim? A second cousin? Someone an employee has casually dated? The EEOC counsels that Title VII “prohibit[s] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights.”

Other courts will have to make those close calls.

Cut your retaliation liability

The Supreme Court’s decision underscores the need for employers to take proactive and thoughtful measures to prevent retaliation claims. Follow these practices to help avoid retaliation claims—not only from employees who have engaged in protected activity, but from those closely associated with them.

1. Adopt and communicate retaliation policies. You need clear written policies stating your organization will not tolerate unlawful retaliation. If you don’t have one already, set up processes for employees to report their concerns about retaliation.

2. Encourage reporting. Make it clear that you want employees to report retaliation concerns or complaints so you can address them early. If you welcome complaints and act appropriately in response, it’s far less likely you will appear capable of retaliation.

3. Investigate promptly. In many instances, the law requires employers to investigate promptly and respond appropriately to employee complaints of misconduct or alleged legal violations. But regardless of the circumstances, you should treat all complaints seriously and professionally—even complaints that do not appear to rise to the level of alleging a legal violation. A good-faith complaint, even if it proves to be meritless, still gives the employee protected status that makes retaliation unlawful.

4. Appraise performance accurately. Train managers to provide timely, accurate and straightforward performance appraisals. If legitimate performance problems exist, performance appraisals should accurately and professionally set forth those issues. Give the employee an opportunity to improve. If you do, you will be able to rely on the performance review if you have to defend a retaliation lawsuit or other employment law claim.

Encourage managers to keep notes of their conversations with employees about performance. Those notes and performance appraisals will help demonstrate to a court that a performance issue existed before anyone reported discrimination or other unlawful conduct. That takes retaliation out of the liability equation.

5. Treat employees consistently. Reduce the risk of a retaliation claim by treating the same way all employees who have similar performance problems. This works to ensure that an employee who has engaged in protected activity (or his or her close relation) is treated the same as employees who have not engaged in protected activity.

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Authors: Meghann Kantke and Abigail Crouse are members of Gray Plant Mooty’s Employment Law practice group. Contact them at meghann.kantke@gpmlaw.com and abigail.crouse@gpmlaw.com.

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