Legal claims of retaliation against employers have exploded in recent years. An Equal Employment Opportunity Commission (EEOC) chart of statistics from 1997 through 2010, shows that in the most recent year the largest percentage of claims, 36.3% out of almost 100,000 total handled by the EEOC, were in the area of retaliation. Claims of retaliation have increased each year shown and, in 2010, the latest year available, exceeded even those of race which had been the largest category for years. Clearly important and becoming even more so, what exactly is retaliation?
In layman’s terms, retaliation is payback, the act of getting back at someone, harming or punishing the person because of something they’ve done. In the employment law sense, it’s when an adverse action is taken by an employer against an employee for having taken an action that is protected by law; the result is considered retaliation and it is unlawful.
Adverse action by an employer can take many forms: termination, demotion, discipline, salary reduction, negative performance evaluation, change in job assignment, change in shift assignment and can even consist of hostile behavior toward the person by the supervisor or someone else. Obviously, many of these actions may be perfectly legal and within an employer’s rights under proper circumstances. You are free to engage in adverse actions that are brought about by nondiscriminatory reasons even if the employee happened to have filed a claim against you or was out on protected leave. But before embarking on any adverse action, carefully think things through, ensure that HR is involved and be certain there is proper documentation that shows your action was taken lawfully. If you are unsure, it’s well worth it to get sound legal advice.
Here’s an example of a situation you might encounter: when someone is having performance issues, don’t procrastinate; document the problems right away. If the person then requests and becomes eligible for FMLA leave, you want it to be crystal clear that performance issues were already being addressed in advance and are completely separate from the request for leave. If discipline results from the performance issues after the person returns from leave, be sure you have excellent documentation of the lawful reasons for taking disciplinary action. You always want to consider your documentation in terms of how a jury might view it. Timing of and clear communication to the employee about any performance issue or other lawful reason are vital.
Don’t forget that whether or not retaliation occurred may be in the eye of the beholder. Consider whether any adverse action you take may be viewed by the employee as punishment for something they have done that has legal protection. Treating employees humanely and respectfully, even when initiating a disciplinary action, is vital. Not only is it the right thing to do, but employees who are treated disrespectfully can become angry. And angry individuals are much more likely to file a lawsuit, baseless or otherwise, against you.
In addition to taking FMLA leave, what other common employee activities are protected by law? Here are some important examples:
Requesting accommodation under the Americans with Disabilities Act;
Bringing a claim of discrimination;
Taking protected leave under Uniformed Service Employment and Reemployment Rights Act;
Making a complaint of harassment or other workplace violation (such as a safety infraction or a wage-hour law violation;)
Posting comments on social media that qualify as “protected concerted activity;”
Participating in a government agency’s investigation of a claim brought by another employee.
It’s pretty clear that retaliation should be on every employer’s radar screen and it’s key that all of your managers and supervisors be trained to understand it, to understand protected statuses and activities, and to make sure discrimination in general and retaliation in particular doesn’t happen. After all, supervisors are on the front lines where they could make stray comments that might be construed by an employee to be retaliatory. Even unfounded legal claims are costly in terms of time, effort and attorney fees so you want to avoid even the appearance of retaliation. Further, it is ironic that even when an initial claim of a workplace violation is found to be baseless, the employee may still be able to prove that retaliation occurred as a result of his or her making that initial, baseless claim!
And there’s yet another caveat–they say the road to hell is paved with good intentions! Here’s an illustration of good intentions gone bad: Let’s say an employee alleges sexual harassment by her supervisor. In response, you switch the employee’s shift from day to evening so she doesn’t have to work with that supervisor. Guess what? Even though you intended no harm and thought you were trying to help her, if the employee prefers the day shift, she has a claim that you retaliated due to her claim of sexual harassment. In response to a claim of sexual harassment or any other forms of discrimination, don’t focus only the victim and ignore the alleged perpetrator as shown in the example. Conduct a full investigation and, if such discrimination is indeed happening, put a stop to it. And document all of your actions along the way.
So what can you do to prevent claims of retaliation in your workplace? Here are some strategic steps:
Establish a policy. Spell out what retaliation is and make it clear that you will not tolerate retaliation from managers or other employees. Tell employees what steps to take if they feel they are being retaliated against.
Train your managers. Make sure managers and supervisors understand what retaliation is and what your policy says. Make sure they know to always include HR when they wish to recommend an adverse action against an employee.
Respond to all claims and complaints. If a claim of a workplace violation or other workplace complaint is made, communicate with the employee. Explain that you take the claim seriously and won’t tolerate retaliation from anyone in the company.
Keep any claims you receive confidential. Confidentiality is respectful to the employee but there’s another reason: the fewer who know about a claim, the lower the chances that someone will retaliate against that employee. Naturally, when you investigate an employee’s allegation, you will have to tell some people about it but make sure it’s only those who absolutely need to know. And when you tell them, explain what retaliation is and that it won’t be tolerated.
Document, document, document. Take notes of everything you do to prevent retaliation. If an adverse action against an employee is justified, even when an employee has engaged in a protected activity, make sure it’s clear that your action was not in response to the employee’s protected activity or status and was taken for other, lawful reasons (such as poor performance or other job-related reasons) that are well communicated and well documented.
Treat all employees with respect, even when taking an adverse action.
Employment law can seem complex and it may sometimes seem that the deck is stacked against employers. But if you are meticulous, think things through, and document all adverse action properly, you should be able to take adverse actions when appropriate and protect your organization from claims of retaliation and all other forms of discrimination.
The largest single class disability discrimination lawsuit, brought by the Equal Employment Opportunity Commission (EEOC) against Verizon Communications, was recently settled to the tune of 20 million dollars. The suit contested Verizon’s “no fault “ attendance policies because of their inflexibility which did not allow for reasonable accommodation of individuals with disabilities, in violation of the Americans with Disabilities Act (ADA.) The EEOC maintained that, as a result of the attendance policies at the 24 Verizon subsidiaries named in the suit, hundreds of disabled individuals who had needed accommodation were disciplined or terminated. In addition to the large payout, Verizon will be required to overhaul a number of its policies and provide mandatory training to those who administer them, will have additional reporting requirements to the EEOC and must appoint an internal consent decree monitor. Further details are outlined on the EEOC web site.
The Verizon case represents an important lesson for all employers: you must provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause an undue hardship, i.e. significant difficulty or expense. Always keep the ADA in mind when crafting leave policies and carefully consider potential ADA situations when considering termination or other adverse employment actions.
What does a cat’s paw have to do with managing human resources at your organization? Well, it begins with a fable about a monkey who persuades a cat to remove roasting chestnuts from smoldering embers. The cat burns his paw in the process and, you guessed it, the cat never gets his share of the chestnuts; the monkey runs off with them all.
So what does this 17th century French fable have to do with HR? The American Heritage Dictionary defines the term “cat’s paw” as a person used by another as a dupe or tool. Earlier this year, the Supreme Court issued a ruling based on cat’s paw theory. The case involved an army reservist, Vincent Staub, who worked at a hospital. After review of his personnel file, which included a prior disciplinary action, and after speaking with his supervisors, the HR Manager made the decision to terminate him.
Staub sued for wrongful discharge, contending that he had been fired in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on time off for military service. The Supreme Court agreed with Staub that the prior disciplinary action in his personnel file was based on biased reporting by his supervisors who maintained an anti-military mindset. They further determined that these biased supervisors had influenced the final decision-maker, the HR Manager, when they caused the prior discipline to be entered into Staub’s records. So, while the HR manager herself showed no anti-military bias, she relied on information that was discriminatory in making the decision to terminate. Under cat’s paw theory, she served as the dupe used by the supervisors.
So what does this mean for your organization? Well, clearly, one should tread carefully with all adverse employment actions. This means thorough fact-finding investigations. You shouldn’t necessarily take a supervisor’s word alone without further digging. Review all anti-harassment policies and all grievance and investigative procedures. Train supervisors in all your policies but particularly in nondiscrimination and anti-harassment. Supervisory performance reviews should reflect how well supervisors coach and develop staff. There are never full guarantees against lawsuits, but implementing sound policies, procedures and training will keep your risk to a minimum to keep you from getting burned!
Not unexpectedly, the Supreme Court ruled Monday that the discrimination bias case brought against Wal-mart did not qualify for proceeding further as a class action suit. The case grew from a 2001 suit brought by an individual, Betty Dukes, and involves accusations that the retail giant pays women less and gives them fewer promotions than their male counterparts.
The court did not rule on whether women have been discriminated against, only that they could not sue Wal-mart as a class. The justices split 5 -4 on ideological lines on part of the decision but unanimously found that the plaintiffs’ lawyers had improperly sued under a certain section of class action rules that was not primarily concerned with monetary damages.
This Supreme Court decision reverses a prior ruling by the 9th District Court of Appeals of San Francisco. If allowed to proceed as a class action suit on behalf of 1.6 million current and former female employees, Wal-mart’s already substantial costs would likely have soared into the billions of dollars and it is likely that similar suits would have cropped up against other organizations. While this ruling is a clear victory of sorts for the big box giant and perhaps other large businesses, litigation by at least two of the several plaintiffs may continue individually meaning Wal-mart is not yet off the hook, though it is a decidedly smaller hook than it would’ve been. Wal-mart claims that its policies prohibit discrimination and that it has taken steps since the suit was filed to address problems.
It looks as though the Supreme Court justices are unconvinced that the largest discrimination case in history, brought by several women against Wal-Mart, should have been certified as a class action suit by a lower court. That certification by the 9th Circuit court includes every woman employed for any period of time during the past decade at any of Wal-Mart’s 3400 stores. The upshot thus far seems to be that the argument that the claims are not similar enough to be typical is prevailing and that the cases should have instead been brought in separate trials. Law professor, Kent Greenfield, writes in the Huffington Post as to what the justices, Kennedy in particular, may be missing about the power of corporate culture. For more information click here to visit the Huffington Post web site.
Whatever the outcome, Wal-mart won’t be the last organization fending off allegations of a pervasive culture of discrimination. Six women filed suit on March 21 against Bayer Corporation citing discrimination based on gender, taking leave protected by federal and state laws, as well as pregnancy status and that of primary-caregiving mothers. The six claim to represent hundreds of other women and their allegations, if true, seem overtly egregious. For more details on the Bayer case, see the Society for Human Resources online news article by clicking here.
Of course the best way to avoid getting into a similar situation is to train, train, train your managers on these and all your policies and practices: sexual harassment and other harassment awareness, proper interviewing, FMLA, and all of your non-discrimination policies and practices. As with all important communications, the message and culture of non-discrimination comes from the top so top executive support and messaging are key. For more information or help addressing these issues, HRSentry.com provides up-to-date links to laws and legal information, best practice information, sample policies and kits.
