Issue: Retaliation complaints by employees doubled in the past decade.
Risk: Even if you escape liability on an initial employment lawsuit, you could be smacked with a secondary retaliation charge.
Action: Scrutinize the timing of any negative action taken against employees who complain.
In employment law, as in hockey fights, the one who retaliates against the initial action usually gets into the most trouble.
Say an afternoon fry cook sues a restaurant for age discrimination. His case has no merit and would easily be tossed out of court. But the restaurant manager, annoyed at the suit, switches the cook to the early morning shift. Could that be deemed retaliation? Maybe, but the restaurant will likely spend a lot more money defending the retaliation claim than the initial age-bias claim.
Such retaliation lawsuits are becoming more common. In fact, the number of retaliation complaints filed by employees with the U.S. Equal Employment Opportunity Commission (EEOC) has more than doubled since 1992. And retaliation claims now make up 27 percent of all EEOC claims, up from 15 percent a decade ago.
For employers, retaliation allegations can turn particularly sticky. Why? The employer-employee relationship rules change when retaliation rears its head, says D. Jay Sumner, senior associate with employment law firm Krupin O'Brien LLC in Washington, D.C.
Retaliation: A 3-piece puzzle
Many federal employment laws, including Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act, prohibit your organization from retaliating against workers who engage in "legally protected activity." That includes filing a lawsuit, filing a charge with the EEOC or state agency or participating in a workplace investigation.
A retaliation claim must exhibit three parts:
Protected activity. Say an employee files a complaint with the EEOC. That counts as a protected activity, as does a simple complaint or protest about employment discrimination. 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 employment action" following the legally protected activity. Examples: being fired, denied a promotion, turned down for a job, denied benefits or suspended. Other types of adverse actions include threats, reprimands, negative evaluations, harassment or other poor treatment.
Evidence that the two are linked. Finally, to file a retaliation claim, employees must show evidence 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," Sumner notes. "You don't have to 'walk on eggshells' around him or her, though you should carry on as you would if no charge was ever filed."
In some situations, however, you'll need to discipline such "protected" employees. Sumner says that's why it's wise to limit the number of supervisors who know about the employee's complaint. Reason: "If the supervisors who make the adverse employment decision are unaware of the charge, they could not have made the decision because of the charge," he says.
3 questions to ask
How can you prove that your intentions are lawful? Before taking any action against "protected" employees, Sumner recommends asking yourself these questions:
1. "Why now?" Scrutinize your timing.
2. "Why am I taking this specific action at this moment?" Examine your reasons, your motive and whether there's any connection to the employee's complaint.
3. "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 you take the added step of documenting 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, even if you intend to implement a new policy on discipline, attendance, conduct or anything else. "Don't make the protected employee the test case for the new way of doing things," Sumner says.
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