"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.
And retaliation comprises about almost 40% (and rising) of all EEOC charges, the most frequently filed charge with the EEOC.
Two new government announcements will preface and underscore the need for this tutorial.
A New Retaliation Lawsuit And Settlement
Yesterday, the EEOC announced that it has sued an Alabama company contending that it retaliated against one of its managers for firing an employee who had sexually harassed and assaulted a female co-worker. The suit alleges that the employer verbally abused him, re-hired the harasser, and terminated the manager when he declared that he would "tell the truth" about the matter.
And the Justice Department just settled a case against a city in which it was alleged that the city discriminated against an employee by subjecting her to sexual harassment (unwanted sexual advances by a co-worker) and then firing her when she complained and filed an EEOC charge. The complaint alleges that the city fired her for making internal complaints and filing a sex discrimination charge with the EEOC.
The cases keep coming and the filing of retaliation charges will continue at an alarming rate.
What Is Retaliation?
Retaliation is far easier to prove (and difficult to defend against) than the underlying discrimination, and even if the underlying claim of discrimination has no merit, retaliation can still be claimed and 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.
An employee who alleges or files a discrimination claim or complaint is protected from retaliation – in our parlance, the employee becomes insulated or “cocooned,” because it is extremely difficult or even next to impossible to take any adverse employment action at that point for fear of incurring a retaliation charge.
Pretty much anything you can do can be claimed to be an “adverse act” against an employee who has 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.
A claim of sexual harassment by a supervisor is particularly susceptible to a follow-up retaliation claim since virtually any adverse action against the employee can be viewed as retaliation.
Preventing Retaliation Claims
To prevent retaliation claims, you first must take all steps to prevent any discrimination claims. You know the drill – zero tolerance policies, up-to-date employee manuals, training (and more training) for all managers and employees, and open communications with employees especially about reporting discrimination.
As to what to do after an employee has filed a charge or claim of discrimination, we summed it up on September 20, 2011. An employer’s best practice 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.