In employment lawsuits—as in hockey fights—the person who retaliates against the initial offense usually gets in the most trouble.
Example: Say a store clerk sues for age discrimination. His case has no merit and would easily have been tossed out of court. But the store manager is annoyed by the lawsuit so he cuts the employee’s hours in half. The result: an unsuccessful age-bias lawsuit, but a successful retaliation claim.
Retaliation lawsuits are all the rage among employees (and their lawyers) these days.
Employees filed 26,663 complaints of retaliation with the EEOC in 2007, up 18% from the previous year. Race continues to be the most common complaint. But, for the first time, retaliation was the second most common. Retaliation claims leap-frogged sex-based charges for the first time.
Why the increase? One key reason is a landmark U.S. Supreme Court ruling in 2006. It established a broader national definition of what actions would be considered illegal “retaliation” under federal anti-discrimination laws. It, essentially, made it easier for employees to file and win retaliation cases (Burlington Northern & Santa Fe Railway Co. v. White).
To successfully bring retaliation claims into court, employees now only have to prove two things:
1. They engaged in some protected activity (complained about discrimination, filed a lawsuit or EEOC charge, participated in an in-house investigation, etc.).
2. They were subjected to a “materially adverse action” because of that protected activity. That’s a broad definition—and confusing, which has led to more lawsuits.
That doesn’t mean those who complain are untouchable. If employees voice a complaint, they must be treated just like any employee.
But be aware how a court will view the timing of any discipline. And make sure HR reviews supervisors’ planned firings, demotions or other changes to complainers’ jobs.
“Try, even though tensions may be high, to keep the status quo so you don’t face a retaliation charge,” says Elizabeth Bille, counsel to the EEOC vice chair.
Limiting your exposure to retaliation claims: 5 tips
Now that the predicted increase in retaliation lawsuits since the Burlington case has materialized, employers need to take action to minimize their exposure to retaliation claims. Here are five important ways:
1. Set a clear policy and procedures. Make sure all employees understand your anti-retaliation policy and how to file complaints. Fully investigate all complaints promptly.
2. Remind supervisors of the ground rules. Most supervisors understand that disparaging remarks about race, sex and age have no place at work. But even those bosses can lose their cool when faced with a discrimination charge they view as groundless.
Use these new statistics to remind supervisors that they can’t strike back in any way—firing, demotion, transfer, harassment, etc.—even if the case is frivolous.
In a recent case in New York City, a manager was found to have retaliated against his employee when he removed her office door after she spoke up about discrimination.
3. Review the timing of employment actions, discipline. Many retaliation claims are built on the logical inference that a change in the employee’s status shortly after the complaint was caused by that complaint itself, and is, therefore, retaliatory.
A red flag should pop up if a supervisor proposes a job-status change right after an employee complains of discrimination.
4. Take a broad view of what might be considered retaliation. Under the Supreme Court’s new standard, employers must be alert to any action that could be deemed retaliation, even actions that don’t seem job related. Courts will view the retaliatory impact on a case-by-case basis.
The Supreme Court, for example, said that a supervisor’s failure to invite an employee to lunch may seem trivial, but it could be deemed retaliation if that lunch was an important training session.
5. Limit the number of people who need to know about complaints. By definition, if a supervisor doesn’t know about an employee’s complaint, he or she can’t retaliate against it.
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