Don’t discuss employees’ religion with them, especially not at a mandatory meeting, no matter how well-intentioned you are. And certainly don’t take adverse employment actions against an employee who opposes such a company practice. That is called “retaliation,” and it is illegal, sometimes even if the underlying practice is not.
Settlement Of Retaliation Suit Gives Us A Chance To Review “Retaliation”
This is the takeaway from a lawsuit against a Tennessee machine company who found out about retaliation the hard way. It conducted daily mandatory meetings, called “huddles,” at which (as the EEOC put it), “employees would discuss milestones occurring in their personal lives including their religious affiliations and church activities.” It then fired an employee who opposed such a practice and filed a charge of discrimination.
The EEOC sued for retaliation on behalf of the employee, and has just settled with this employer for $80,000, and a whole lot of other relief set forth in a four-year consent decree.
What Is Retaliation?
We hope that everyone is aware by now that retaliation claims are increasing very rapidly since an employer who has an underlying charge or claim lodged against it has a very thin tightrope to walk to avoid a current employee from also charging retaliation.
We figured that this might be a good opportunity to review “retaliation” since it 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.
Takeaway: don’t retaliate – ever!