Expect the 2006 blockbuster U.S. Supreme Court ruling, Burlington Northern v. White, to swell the number of retaliation complaints and legal claims.
Employees can win retaliation lawsuits only if they can prove that they suffered an "adverse action" in response to their protected activity (filing a discrimination complaint, etc.). But the Supreme Court has adopted a very broad national standard of what is considered an adverse action.
Retaliation claims are on the rise. In fact, nearly 30 percent of employment claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) now include complaints of retaliation. That's up from just 15 percent in 1992.
Retaliation: A 3-piece puzzle
Many federal employment laws, including Title VII discrimination law and the ADA, prohibit retaliating against workers who engage in "legally protected activity."
A retaliation claim must exhibit the following three parts to make it to trial:
- Protected activity. Employee EEOC claims count as a protected activity, as do in-house complaints about employment discrimination or participation in an investigation. Also, employees engage in protected activity when they refuse to obey an order because they believe it's discriminatory.
- Adverse action. Next, an employee must suffer an "adverse action" following the legally protected activity.
- Evidence linking the two. Finally, employees must prove that the protected activity and adverse action were linked (i.e., that retaliation was a motive for the adverse action).
Are complainers ‘untouchable'?
If an employee files a complaint, you need to treat that employee just like any other employee. Be aware of the timing of your employment decisions and discipline. Establish a clear anti-retaliation policy and complaint procedures, and make sure employees know about them.
Take note, however, that these "complaining" employees aren't immune from discipline. In some situations, you'll need to discipline such protected employees.
That's why it's wise to limit the number of supervisors who know about the employee's complaint. Reason: If a supervisor who disciplines an employee is unaware of the employee's discrimination complaint, the supervisor couldn't have made the decision based on the charge.
3 questions to ask
How can you prove that your intentions are lawful? Before taking any action against "protected" employees, ask yourself these questions:
- "Why now?" Scrutinize the timing of your actions. If it smells like retaliation, a jury could rule that way.
- "Why am I taking this specific action at this moment?" Examine your reasons, your motive and whether there's any connection to the complaint.
- "Would I take this action if this were my best employee?" If your answer is "No," you could open yourself to a retaliation charge. If your answer is "Yes," make sure that you document the basis for your decision before going forward.
Bottom line: If you're facing an employee complaint, now's not the time to stray from your everyday practices.
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