"Any employment discrimination problem — sexual harassment or anything else — can always be made worse and more injurious to the conduct of the employer’s business. Retaliation is guaranteed to do that. It never makes sense, it is never good for business, and it is always illegal." This is from an EEOC lawyer quoted in our blog of September 11, 2012.
With retaliation the most frequently filed charge with the EEOC (the EEOC reports that last year 38.1 percent of private sector bias charges were for retaliation), how much do you know about it? Do you know that its different than other kinds of employment discrimination?
1. Do you know what retaliation is?
As our readers are well aware, an employer is not permitted to retaliate against an employee who has filed a claim or complaint of discrimination. However, retaliation is far easier to prove than the underlying discrimination and even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is: (1) that plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” by the employer, and (3) some causal connection between the two.
2. Do you know who is protected from retaliation?
An employee who alleges or files a discrimination claim or complaint is protected from retaliation. However, we noted on January 25, 2011 that the United States Supreme Court expanded the field and unanimously held that the anti-retaliation provision of Title VII protects employees from retaliatory termination where that employee was the fiancé of another employee who exercised her rights under the statute to file a discrimination complaint. This has been called “associational discrimination.”
Lower appeals courts which have been faced with claims of associational discrimination have so far held that close or intimate family members or friends of employees who are also employees are considered closely enough associated to warrant a so-called “third party claim” under Title VII. These associations may be parent and child, husband and wife, engaged fiancés, and even two people dating.
3. Do you know that claims can be filed after employment ends?
Usually a claim for retaliation is made by a current employee, since it seems obvious that an employer does not have the ability to retaliate against someone who is no longer an employee. Not so: retaliation can occur after the termination of employment. As we noted on May 23, 2011, courts have held that even though an “adverse employment action,” by its very wording, seems to apply only to a current employee, nonetheless in light of the broad purpose of the anti-discrimination laws, which are to be “liberally construed,” it is not limited to current employees. The anti-discrimination laws also protect former employees from further adverse actions by the former employer.
For example, retaliation may be found in a case where an employer refused to re-hire a former employee who had two years earlier resigned after claiming sexual harassment.
4. Do you know what acts of yours may constitute retaliation?
Pretty much anything you can do can be claimed to be an “adverse act” against an employee who filed a complaint of discrimination, and therefore retaliatory (and employees have, indeed, claimed just about everything). Termination, of course, is an adverse act, but adverse acts can also be demotion, transfer, ignoring or berating an employee, taking away work or responsibility, or giving too much work, and even refusing to re-hire.
5. Do you know how to avoid a retaliation charge?
We summed it up on September 20, 2011. An employer’s best practice in a situation where a discrimination claim has been filed is to take a “business as usual” approach and act as if no complaint had been filed by treating the employee like any other employee; engaging in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, documenting all decisions and pre and post-complaint performance issues that might result in discipline.
Finally, anti-discrimination training of managers and employees is key.
In this uncertain economy, insecure employees often try to game the system by filing weak or meritless charges of discrimination, knowing that employers are likely to avoid doing anything that might bring on a retaliation claim. The result is that the insecure employee is able to delay or avoid altogether appropriate disciplinary measures or termination. We believe that this likely accounts for the explosive growth of retaliation claims.
Employers must stick to “best practices” – being sued for retaliation may be unavoidable, but avoiding ultimate liability should be the goal.