Escaping the Pain of Retaliation Claims

Escaping the 'Incredible Pain' of Retaliation

Retaliation claims are growing, and it is no wonder—employees with baseless claims can make their retaliation claims stick. "You just don't want to be in front of a jury on one of these cases.” Jurors distrust employers to start with. And they easily identify with retaliation claims as part of human nature.

The Story of Uncle Milty
Uncle Milty was a 62-year-old executive whom colleagues called "Uncle" and "Grumpy." Uncle Milty lost out on a promotion which was given instead to a 35-year-old, says Faillace. Uncle Milty's lawyer fired off a letter accusing his employer of age discrimination, and days later, Uncle Milty was fired. His employer said he was fired because he was not a "team player." He always thought he knew better they said, and he made faces during meetings.

Jury Agrees: No Discrimination
A jury agreed with the employer that there was no evidence of discrimination; however, they did award Uncle Milty $5 million plus attorney's fees for retaliation.
This employer could have avoided all liability if it had done its homework when the attorney's letter arrived. "No matter how much of a pain it is." In this situation you buy the executive out and get a release.

Components of a Retaliation Claim
There are three primary elements of retaliation:
1.Protected activity
2.Adverse employment action
3.Causal connection
Protected Activity
Protected activity is of two main types: opposition and participation.
•Threatening to file a charge or other formal complaint alleging discrimination
•Complaining to anyone about alleged discrimination against oneself or others
•Refusing to obey an order because of a reasonable belief that it is discriminatory
•Requesting a reasonable accommodation or a religious accommodation
Remember, that an articulated expression of opposition is not required. Conduct itself may be enough, for example:
•Rejecting a supervisor's sexual advances
•Asking an employer whether race factored into an employment decision
•Peaceful picketing.

However, the employee's opposition must be reasonable. Some examples of acts that were not protected:• Disruptive and violent picketing
•Violations of legitimate company rules
•Knowingly disobeying company orders that are not discriminatory
•Conscious efforts to hamper the company's business pursuits.

Participation
Generally, employees are also protected when they make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing.
Making a preliminary visit to an EEO counselor
•Expressing an intent to file a charge
•Being a probable witness
•Assisting fellow workers in their discrimination claims

There is an important distinction between "opposers" and "participants." Opposers must have a good faith belief that the employer is violating the law; however, participants generally do not have to have such a belief. For example, a person testifying is protected even though he or she doesn't believe a law was broken.
Managers and supervisors tend toward retaliatory behavior against participants. They will ask the participant. "Whose side are you on anyway?" You must train your managers that participation is protected.

Another element of a retaliation case is adverse action. What constitutes an adverse employment action?
For sure, employment actions such as the following: denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are adverse actions.
The EEOC also includes threats, reprimands, negative evaluations, harassment, or other adverse treatment, but the federal courts don't always agree on these points.
Actions that have been found not to be adverse actions include:
•Making vague or isolated remarks about protected activity
•Contesting unemployment compensation
•Complaining about undesirable work assignments.
The EEOC and courts may also define adverse action more broadly as an action "reasonably likely" to deter charging parties from engaging in protected activity.

Best Practices for Avoiding Adverse Actions:
•Create and implement a specific anti-retaliation policy
•Train managers and supervisors
•Prior to taking any adverse actions against employees:
oInterview managers, noting any possible protected activity
oEnsure legitimate reasons exist for taking the adverse action
oConsult with your legal department or outside counsel.
Causal connection
The third element of retaliation claims is the causal connection. That is, the employee must show that the employer took the adverse employment action because the plaintiff engaged in the protected activity. In addition, the suing employee must show that the protected activity preceded the adverse action and that the employer had knowledge of the protected activity.
Sometimes the causal connection is shown by direct evidence, such as e-mails, and sometimes by indirect evidence; for example, time proximity (e.g., fired the day after lodging a complaint).
Escaping Liability
Once a claim against an employer is established with the three elements discussed above, the employer may defeat it by producing evidence that the employer had non-retaliatory reasons for its action. For example:
•Insubordination
•Refusal to perform assigned work
•Failure to get along with others
•Violence
•Business reorganization
•Misconduct
Retaliation Tips
•Carefully document performance problems. Progressive discipline records will help suggest that no retaliation took place.
•Ensure that documentation is consistent with employee's employment history. Be especially wary in situations that show a sudden drop in performance.
•Treat complainants like other employees to negate an inference of retaliation.
•Do not order surveillance on employees who have complained. That can constitute an adverse action and is unlawful if conducted because of the protected activity.

Summarized from Today's HR Tip: Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a Society for Human Resource Management (SHRM) conference.