Claims of Retaliation Are on the Rise

Posted on January 9, 2012 by jill

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.

No Room For Tolerance of Sexual Harassment

Posted on November 8, 2011 by jill

As accusations of sexual harassment continue to dog Herman Cain’s run for the Republican Presidential nomination and the media blare new developments daily, it brings to my mind four questions that employers should ask themselves: What does sexual harassment in the workplace consist of? How do we prevent it? What should we do when an allegation of sexual harassment does occur? Why should we care?

Taking the last question first, i.e. why care, there are important legal considerations to having a workplace free of sexual harassment. Sexual harassment in the workplace violates Title VII, a federal law enforced by the Equal Employment Opportunity Commission (EEOC) prohibiting discrimination against protected groups. There have also been laws against sexual harassment enacted by each state. But more than the legalities, it simply makes good business sense to maintain a working environment in which employees feel comfortable and respected to avoid the costs of poor morale, reduced productivity, lawsuits, and damaging public relations issues.

Sexual harassment consists of any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile or offensive working environment. Any conduct of a sexual nature that makes an employee uncomfortable has the potential to be considered sexual harassment. The harasser can be the victim’s supervisor, manager or co-worker or non-employee such as a customer or salesperson.

Although Cain’s accusers are women, and it is common for females to be victims of male harassers, sexual harassment is not gender dependent. The victim can be male and the harasser female and harassment can occur within the same gender as well.

So how do you make sure it doesn’t happen at your workplace?

Adopt a clear sexual harassment policy. Your policy should be in your employee handbook and should be distributed separately to all new employees to emphasize its seriousness and to make sure everyone understands it. If you have an intranet, post it there as well and on any bulletin boards where you normally post employee notices. Your policy should: define sexual harassment, state in no uncertain terms that you will not tolerate sexual harassment, state that any wrongdoers will be disciplined (and that such discipline may include termination), set out a clear procedure for filing sexual harassment complaints, state that you will investigate fully any complaint that you receive and state that retaliation against anyone who complains about sexual harassment will not be tolerated. It’s important that employees have more than one person to report a complaint to; the last thing you want to have is a victim whose only recourse is to complain to their harasser!

Train your staff. Conduct training sessions for employees at least annually. These sessions should teach employees what sexual harassment is, explain that employees have a right to a workplace free of sexual harassment, review your complaint procedure and encourage employees to use it. Let employees know that you take this topic seriously and do not tolerate inappropriate behavior.

Train supervisors and managers. At least annually, conduct training sessions for supervisors and managers that are separate from the employee sessions. The sessions should educate the managers and supervisors about sexual harassment and explain how they should deal with complaints. Be sure they understand that complaints should be dealt with in a timely manner and that any retaliation on their part will not be tolerated.

Monitor your workplace. Know your employees well and be observant. Talk to staff about the work environment and the level of respect. Ask for input and encourage open communication. Take a closer look at any hint of a problem. Talk to managers and supervisors about always setting a good example.

Take all complaints seriously. If someone complains about sexual harassment, treat the person with empathy and respect. Act immediately to investigate the complaint. If the complaint turns out to be valid, your response should be swift and effective. Sometimes a person complains to HR but asks that it not go further. Explain to the person that you must investigate fully and that, while you cannot guarantee anonymity, you will protect their identity to the extent that you are able.

Creating a respectful work environment goes a long way toward preventing problems. But people are complex creatures and, despite all your steps and hard work at risk reduction, you may still have to contend with an allegation of sexual harassment. Strong policies and prevention measures, respectful and non-retaliatory treatment of the accuser, a swift and thorough investigation and an appropriate response will work in your favor.

Verizon Settles Huge ADA-related Lawsuit

Posted on July 18, 2011 by jill

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.

Supreme Court Rejects Class Action Claim Against Wal-Mart

Posted on June 21, 2011 by jill

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.

Retaliation Leads the Pack in EEOC Charge Increases

Posted on June 13, 2011 by jill

As the saying goes, statistics don’t lie. Well, maybe they can be misleading at times. But the EEOC’s recent publishing of its chart of charges filed by individuals from 1997 through 2010 contains important information. The steepest rise in filings against employers has been in the area of retaliation. That’s when an organization is accused of taking an adverse employment action, such as termination or discipline, as a result of an employee’s engaging in a protected activity such as bringing a claim of harassment, taking protected leave or participating in protected union activity.

This doesn’t mean that you can’t legitimately fire someone who deserves it. But the message is this: before taking any sort of adverse action against an employee, make sure you have documentation that the action is related to job performance or some other legitimate reason. And if the employee has recently engaged in a protected activity, be sure to conduct a careful analysis of the circumstances and to have proper documentation to prove that your action is not retaliatory. Your best protection is to have a policy against retaliation, train your managers in it, communicate with an employee who brings forth a claim, and to document, document, document.

Subscribers to HRSentry have excellent resources at their fingertips 24/7! These include resources on retaliation, its prevention and proper termination to reduce your organization’s risk.