Retaliation

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This is not a post about any of the activities of the Trump Administration even though the headline uses his catch phrase.  We are taking a break from our multi-part series of commenting on the investigation of Trump’s ties to Russia to address a completely different topic.  Retaliation.  (Okay, maybe not a totally different topic depending on what really was the reason for Director Comey’s firing).

Law 360 is reporting that a former Giants’ defensive lineman is suing his former employer Home Towne Rx Pharmacy for firing him after he reported that two female employees had allegedly been sexually harassed by one of the company’s executive vice presidents.

60626072 - business man pointing the text: you're fired!

At this point, we literally know nothing about the case as we have not even seen the complaint.  However, according to the report, the complaint alleges that Leonard Marshall was fired only a few weeks after reporting that the women were complaining of harassment by the executive vice president.  It also alleges that the CEO of the company explicitly told Mr. Marshall that he was being fired for raising the complaint and spreading false claims against the other executive.

In my over 20 years of litigating employment discrimination claims, I can tell you that there are always two sides to every story, and sometimes more.  Even if the allegation that he was explicitly told that the complaint was the reason for his termination is false, at the least, the timing of Mr. Marshall’s termination should have given the company pause about whether they were justified in terminating his employment and whether that justification could be backed up by anything in writing.

If the allegation is true, the same question about documentation should be raised. For example, if the company did an investigation of the claims of harassment and found that Mr. Marshall and/or the women were making up the allegations, how did the company come to that conclusion?  Is it just a he said/she said situation or are there emails, texts, or other documentation that show the claims are false?

There are certainly cases where an employee or witness involved in a harassment investigation lies and a company is thus justified in firing that employee.  However, employers should tread very lightly in disciplining the complaining employee or a supporting witness for lying in the investigation.  In such cases, if I am counseling a client, I want to see more than it was a “feeling” that they lied.  I also want to see more than a bald assertion from the accused that it is all made up lies.  (Oh, look at that, maybe we did not take a break from commenting on politics after all.)

Last week, the EEOC reached a $1.02 million settlement with Vail Run Community Resort Association, Inc. and its management company, Global Hospitality Resorts, Inc.  The settlement came after the EEOC sued based on its allegations that a housekeeping manager, Omar Quezada, repeatedly sexually harassed female subordinates.  The settlement will resolve the claims of 8 female employees.

This case certainly caught my eye because of the size of the settlement, but also because of the other obligations set forth in the consent settlement decree.  Pursuant to the settlement, there are some relatively minor “extras,” for example, giving favorable references and apology letters to the former employees.

The settlement also requires regular training on harassment and discrimination and, more unusually, the appointment of a monitor to assess compliance with the decree.  This is not a simple one-off check-in to see if the the companies are complying with the settlement.  Instead, the companies will have to pay an outside monitor for five years.

22207527_sUnder the settlement, the Spanish speaking monitor will insure that semi-annual training is conducted and will regularly be interviewing employees to determine if harassment or discrimination is occurring.  The monitor will also have to review any and all charges of discrimination during this time period.

If this were a Roadrunner cartoon, that outside monitor would be represented by a 1 ton weight hanging over Wile E. Coyote’s head.  Granted, there are rather serious allegations in the complaint and the supervisor in question has already been criminally convicted of unlawful sexual contact and felony extortion, so this is not your usual discrimination claim.

I think most employers would not relish having a monitor coming into the workplace and speaking with employees.  It may seem counter-intuitive but this is why you want to encourage employees to come to you with complaints, no matter how minor.  If you have an open door policy and then actually investigate the complaints that arise, you, hopefully, are dealing with much less severe situations and resolving them without the employee ever needing to get the EEOC involved.

 

FrigidMany of us are currently buckling in for a frigid holiday weekend (except for the lucky folks down in the south and southwest).  However, recent data issued by the U.S. Equal Employment Opportunity Commission (EEOC) shows that charges of discrimination continue to remain white hot (despite the temperature).  For the 2015 fiscal year, the EEOC clocked an uptick of total charges to 89,385 (up from 88,778 in 2014).  While this aggregate number is still slightly lower than the record-breaking annual charge rates just a few years back, charge rates remain historically high from a decade ago.  State-by-state charge rates are also available here for anyone interested.  The most common discrimination claim nationally (other than retaliation) is race (34.7% of all charges) followed by disability (30.2%), sex (29.5%), and age (22.5%).  (Note that charging parties commonly assert claims under multiple protected categories.)

Notably, retaliation claims remain the largest category altogether, accounting for a whopping 44.5% of all charges asserted.  This is unsurprising since retaliation claims, as a percentage of total EEOC charges, have grown every year since 2002.  This trend is also extremely likely to continue.  As employees become more and more aware of their available claims, retaliation is the easiest allegation to assert, and even control.  As U.S. Supreme Court Justice Anthony Kennedy pointed out in his seminal retaliation opinion, Texas Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013), “an employee who knows that he or she is about to be fired . . . might be tempted to make an unfounded charge . . . ; then, when the unrelated employment action comes, the employee could allege that it is retaliation.”  Id. at 2532.

This gamesmanship, coupled with the difficulty for an employer to prove that a complaint of discrimination and adverse action are unrelated, makes retaliation claims incredibly easy for an employee to maintain.  Although the EEOC recognizes this trend, and that its guidance on the subject has not been updated since 1998 (despite significant intervening U.S. Supreme Court decisions), its recent proposed retaliation guidance, if implemented, will be even more employee friendly than ever and continue to encourage yet more retaliation claims.  Employers must continue to brace themselves for this trend and ensure that all company policies and training procedures adequately address the EEOC’s most active issues.

This past week, the sports world was rocked by the news that a federal judge vacated the suspension of New England Patriots* quarterback Tom Brady in the fallout over Deflate-gate, Ballghazi, or whatever puntastic name you have given to the scandal.  The ruling was a major coup for the NFL Players’ Association and the team, who successfully challenged the authority of NFL Commissioner Roger Goodell.  How Goodell and Brady, one of the league’s most recognizable faces, move on to do business together remains to be seen.

Even for companies without the visibility of the NFL, learning how to move forward with an employee who has beaten the company in a lawsuit, grievance, or regulatory hearing is crucial to mitigating risk going forward.  The problem is that the filing of lawsuits and most regulatory actions is protected conduct under most state and federal laws pertaining to retaliation.  Even if a victorious employee comes back to the workplace with a boastful spring in their step, it is illegal to take reprisals against them, no matter how hard that feeling are hurt.  The simple rule of thumb in these situations is to treat them no differently than before the protected activity.  Sticking by this rule will prevent one bad situation from becoming a second bad situation.

brady

In the case where the bad blood is simply too much, consider settling the employee’s action with a promise of a resignation.  While this will likely require a substantial cash outlay, it is the only fail-safe insurance against a future retaliation suit.

No matter how thorough a company’s human resources policies are, legal actions will arise.  Moving on from an unfavorable outcome requires maturity, discipline, and a resolve to ensure that the victorious employee does not get a second bite at the apple.

*Editor’s Note: In the interests of full disclosure, the author is a long suffering, die-hard fan of the New York Jets.  In his humble opinion, any penalty short of stripping the Pats of their Super Bowl win (as well as additional other public shaming) was grossly inadequate.

36823178_sI was reading an article today about a former partner of a law firm who worked for the firm for a decade before the Attorney General charged her with practicing law without a license.  It turns out, at least according to the AG, that this attorney not only never passed the bar, she never even went to law school.

The article got me thinking about employers’ practices of checking references.  Some employers may never check references.  Other employers may have gotten lax about checking references in light of the fact that many former employers will not disclose anything besides “name, rank, and serial number.”  In fact, this has become the norm as former employers do not want to give more information than dates of employment and job title for fear that a former employee will raise a claim against them if they are honest about the former employee.  This is especially true as plaintiff’s attorneys attempt to stretch legal theories of retaliation to include post-termination conduct such as providing a reference.

So, what is an employer to do?  Even if you don’t think that you are going to get much useful information from a former employer, at the least, you will be able to verify that the employee did in fact work there.  Falsifications on resumes may not be limited to educational history; they could include lying about job histories.  Employers should also contact any schools listed to verify degrees were obtained.

If a prospective employee is required to be licensed, i.e., a doctor or lawyer, employers should also verify that the person is currently in good standing with the applicable  licensing authority.  In many states, this information, including any disciplinary history is available online.  The effort of tracking down the references and verifying a candidate’s educational history is well worth it when you consider that the alternative is that your company name could be in a headline similar to this one in the ABA Law Journal: “Was law firm duped? “Lawyer” practiced there a decade and won partnership; was she licensed?”

We previously reported that the EEOC had filed suit against United Health Programs of America Inc. after workers alleged that they were forced to say “I love you” to co-workers on account of their employers’ beliefs in “Onionhead.”  The suit also alleges that employees were forced to engage in prayer, wear Onionhead-related pins, and burn candles in the workplace.  (Just in case any of you were confused, we really meant Onionhead; this is not a fake news post from the Onion.)

35103496_sUnited Health Programs of America Inc. asked for permission to file a motion in federal court to bar the EEOC from contacting its employees.  The motion alleges that employees were sent a letter that laid out “skewed facts” and seemed to imply that a response to the letter was mandatory.  According to the motion, if employees did not respond to the letter, they were called by the EEOC and sent a follow-up letter.

It will be interesting to see how the Court rules on the motion.  If the allegations in the motion are true, then employers should be aware that the EEOC may employ aggressive solicitation methods.  Of perhaps bigger concern for employers is how to respond to employees who complain about being contacted by the EEOC.

Employers cannot tell employees that they must not cooperate with the EEOC lest they face claims that they interfered with the employees’ rights to report discrimination.  Employers can, however, tell employees that they do not have to cooperate with the EEOC if they do not wish to do so.  It is also fine to tell employees that if they do speak with the EEOC, that they should tell the truth.  Employers should be careful to also let employees know that no action will be taken against the employee if the employee chooses to speak with the EEOC.

Recently I noted a short but informative article in The Washington Post about the rapid growth of employment retaliation claims — fifth year in a row that it has overtaken all other discrimination claims.  I said that employers should carefully study our many posts about retaliation!

Our Takeaway:  Don’t get caught retaliating; read our post of April 10, 2013 entitled “A Refresher Course For Employers On Retaliation.”

Below, we publish some reader comments on the subject.

Geri Hernandez, an employment attorney in the Cincinnati area:

“I’m working on training podcasts on how to prevent retaliation claims in a retail environment.   Anyone else trying to move the dial on these claims and if so, how are you attempting to effect change?”

retaliation : Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.

Lisa Hutchin, a labor relations specialist in the Sacramento area:

“Management can get quite creative on its subtle forms of retaliation (scrutinizing expense vouchers, excluding from important meetings, badmouthing to upper management).

However, we also have to be aware of the fact that there are many folks out there who will scream retaliation when the job duties are changed (not salary), and it is perceived that these work functions are “demeaning” and “harassment” – when in fact the changes are short term and necessary to the running of the business.”

Bennett Pine, an attorney in the NYC area:

“Yes, we’ve all seen it.  Employee complains to the employer about discrimination, or lodges a discrimination complaint with the EEOC.   Claim has absolutely no merit.  But employer then “hates” the employee.  Takes action of one form or another. Employer finds him or herself with a retaliation claim that may be meritorious, even though the underlying claim is not.”  

Tracy Le Duff, a law student in Zachary, LA:

“Ultimately, it is our responsibility to ensure proper training of both management and employees. Expectations need to be set and then followed up on to ensure compliance. Initial claims and more importantly, retaliation claims can be avoided when we inspect what we expect on a regular basis after setting the standard through training.”

Kimberly M. Johnson, an attorney in the Hattiesburg, Mississippi area:

“This is true. It is both good and bad.  Employees are standing up for themselves and using retaliation increasingly against employers, which in a good way keeps unscrupulous employers in check but on the other side has become a sword that prevents good employers even in employee-at-will states from removing chaff from the workplace.

It has become a threatening tool. Documentation is the key that will protect everyone. A good progressive document trial with facts and witnesses always wins. After all, truth in the law is only the truth you can prove.”

 

25300036_sWhew.

Let’s just take a moment for that to sink in.  As we reported on Monday, $185 Million in punitive damages were awarded Monday against AutoZone.  This was after the jury awarded $872,000 in compensatory damages on Friday.

You are probably asking yourselves how in the world this happened.  I have to say, based on some of  the press coverage of this case, I was not at first sure.

The basic facts of Rosario Juarez’s claim are these:

Juarez joined the company in 2000 and was promoted to parts sales manager in 2001. She claims that of 98 stores in the San Diego area, only 10 had female managers. Juarez alleged that AutoZone had a glass ceiling where women were not promoted to store manager positions.

The complaint says Juarez was finally promoted to the position of store manager in October 2004 — but only after she complained about the discrimination. She then claims that after she informed the company of her pregnancy in November 2005, her district manager tried to encourage her to step down, saying she would not be able to handle the responsibilities of running the store and being a mother at the same time. Juarez refused to resign and after her son was born in May 2005, she claims she still suffered discrimination. She again complained of discrimination and was then demoted in February 2006, the suit says. She eventually filed a complaint over the demotion with the California Department of Fair Employment and Housing in 2007.

Juarez was not immediately terminated after filing the administrative complaint.  Instead, many months (perhaps even a year or more) later, Juarez was fired after a customer service representative allegedly misplaced an envelope with cash from the register, and Juarez was blamed and subsequently terminated in November 2008.  Juarez claims that this was a scheme designed simply to retaliate against her.

All in all, a rather run of the mill pregnancy discrimination claim.  Indeed, a claim that could possibly have been dismissed in some courts as the alleged retaliation took place so long after her complaints.

You can see where this claim went wrong when you dig a little deeper into the facts that came out at trial.  According to ABC News 10, the plaintiff presented the testimony of a former district manager, who was also an ordained minister, who claimed that there was a meeting with high-level executives where they were celebrating the expiration of a previous settlement agreement requiring AutoZone to promote women and to track the promotions.  This former district manager said that he was offered a promotion if he fired all the women at his stores.

Damning evidence to be sure.  It also did not help that the person who investigated the loss of cash that led to Juarez’s firing testified that she never believed that Juarez had taken the cash and felt instead that the company was targeting Juarez.  It probably also did not help that this was not the first time that punitive damages were awarded against AutoZone on similar claims.

33089944_sAutoZone has already announced plans to appeal and it is likely that the punitive damages award, which is 200 times the compensatory damages, will get drastically reduced at some phase in the litigation.  However, this case serves as an example to employers whose top level executives do not fully commit to equal employment opportunity principles.  Even if the actual decision makers in this case legitimately believed that Juarez had taken the cash, the testimony that high level executives held such disdain for women likely torpedoed this case.

Quite simply, when training employees on discrimination policies, companies cannot afford to skip high level executives or to tolerate less than full compliance with the anti-discrimination policies or else they risk arguments by employees that there was a “culture” of discrimination at the company as evidenced by the high-level executives’ behavior.

 

OK, so we engaged in a little Page 6 headline hyperbole – the Nuns were not literally “tossed out” of the court, but just had their discrimination claims  dismissed.  But the case is important, and we wanted to catch your eye.

A major issue for employers these days is whether individuals are employees or independent contractors.  There are serious employment and tax consequences inherent in this distinction.  In that regard, we commend for your edification a new federal appeals court decision which dissected this issue and discussed it at length in the course of an interesting case involving two altruistic Catholic Nuns.

See:  http://laborandemploymentlaw.bna.com/lerc/2440/split_display.adp?fedfid=59126599&vname=lefepcases&split=0

nuns : Two attractive young nuns with rosary and bible praying

In that case, the two Catholic Nuns were disaster relief volunteers for the American Red Cross and the [Ohio] Ross County Emergency Management Agency for extended periods of time.  As the Court noted, they “dedicated their lives to assisting the poor and serving the good of the community.”

After some issues with management at both places, they filed a Title VII case (and also claims under Ohio law), claiming religious discrimination, retaliation, and harassment, as well as Section 1983 violations of their constitutional rights to free speech, free exercise of religion, and equal protection under the law.

The issue framed by the Court was:  “Under what circumstances are volunteers protected from employment discrimination by Title VII? … The parties agree that the critical issue is whether the Sisters were ‘employees’ of the Red Cross or RCEMA.”

In summarizing the relevant facts (followed by a long discussion), the Court held that the Nuns “have not shown that they received compensation, obtained substantial benefits, completed employment-related tax documentation, were restricted in their schedule or activities, or were generally under the control of either organization through any of the other incidents of an agency relationship. … Therefore, their volunteer relationship does not fairly approximate employment and is not covered by Title VII. Nor, as will be explained, were the Sisters’ constitutional rights violated.”

The Court goes through all of the relevant factors which distinguish employees from independent contractors, as well as discussing the status of “volunteer.”

Worth a read.

Last week’s post about blatantly discriminatory job ads in New Zealand elicited a number of comments from folks who could not believe that such ads were actually published.  To remind you, these were some of  the ads:

* Young and vibrant waiting staff wanted

* We’re looking for vibrant salespeople with a young, passionate energy

* If you’re a motivated, talented young marketer

* We’re on the hunt for young, fit and competent carpenters for immediate starts

* Young person willing to learn – mechanic technician

Reader Comments

To those of our readers who were surprised — even shocked — at such ads, other readers provided examples from their own practices or corporate experiences which are truly “surprising.”

Read on.

Louise Walker, a Solicitor in Glasgow, UK:

“Helpful article Richard. If an individual has the skills and qualifications required to carry out a job, then their age should not matter. Employers would be well advised to take care when placing adverts to ensure they are not exposing themselves to a claim for discrimination.”

Ed Skinner, an HR expert in the Cincinnati area:

“Amazing … in this day and age! Might as well open the checkbook for a LARGE settlement.   Human Resources Professionals in the United States are less likely to commit that error!”

David Gabor, a Boston attorney:

“Ed, I wish that were true. I recently had a case in which the interview notes contained comments such as “sexy but married….too bad.” “Not my type. Not blond.” “Too skinny” “Pregnant … no way!!!” “Hot and single”

Guess which one got the job? Shortly thereafter she sued for sex harassment. Small wonder.

Worse … Head of HR was in the interviews with the Director!”

Ed Skinner:

“Wow. Bet those two were dropped into HR from some other discipline. Couldn’t have been trained in HR ! I hope. Makes one wonder doesn’t it.”

David Gabor:

“The training received in HR is superior. Sadly, performance does not always follow. Human nature often rears its ugly head.”

Lisa York Bowman, an attorney in Atlanta:

“I recently had a case where the interview notes written on the back of the application were similar to those described by David, despite the superior training that took place within the company.”

Dana Pearl, an EEO/HR consultant in Chicago:

“A client of mine had to fire their plant manager who had attended two of my training programs over a few years, and one of another contractor, because the guy accepted an employee’s offer to ‘service’ him in his car after work.  She turned around and filed a sexual harassment charge. The manager said it was mutually consensual.

Stupid is as stupid does, and no amount of training is going to make someone behave.

hostile workplace : Angry woman makes face behind person over white

I tell my clients that I can ‘lead the horses to water, but can’t make them drink.’ It’s up to the individuals to make the choice to be professional — or not.”