Are You Prepared to Deal With Expanded Anti-Retaliation Laws

By Mark Downey

May. 14, 2009

Here’s the scenario: One of your employees has complained of being subjected to discriminatory treatment, and because you’re a good and conscientious employer, you’re doing the right thing: You immediately start to investigate that complaint. You meet with the employee making the complaint. You meet with the alleged perpetrator of the offense. You meet with the individuals that are said to be witnesses to the actions you’re investigating. Then, out of the blue, during an interview of one of the witnesses, that witness tells you a story. The story you are told, however, is not about the incident that you are investigating. Instead, you are told about an entirely different instance of what might be an unlawful employment action.

As you walk out of the meeting you ask yourself, “What just happened?”

According to the U.S. Supreme Court’s January decision in Crawford v. Metropolitan Government of Nashville and Davidson County, what just happened is that the individual you just interviewed has now participated in a protected activity. It may not be a typical complaint—the employee was not the one who came to HR and said, “My boss did this.” And the employee may not have even been the one to initiate the factual recitation—that is, the story was only told in response to questions by the investigator during the investigation process.

But the story told by the witness does constitute opposition to an unlawful employment practice. As a result, that employee is now within the protections from retaliation under the various anti-retaliation provisions of Title VII, the ADA, the ADEA and many other federal and state employment laws prohibiting retaliation.

The Crawford decision was not the only time that the anti-retaliation provisions of Title VII, the ADA and the ADEA have been expanded. While the anti-retaliation laws have always been viewed as a protection from retaliation for individuals who either oppose an unlawful employment practice or participate in an action to enforce the anti-discrimination laws, these laws do not stop there. In 2006, the U.S. Supreme Court ruled that a violation of these anti-retaliation provisions occurs whenever the employer takes an action that would tend to dissuade a reasonable employee from making a complaint or from participating in an enforcement activity such as an investigation or other proceeding. What this means is that actions such as demotions, decisions not to promote, changing the employee’s job duties, discipline and terminations can all expose the employer to potential liability for violation of the anti-retaliation provisions of Title VII and the other federal employment laws. Retaliation is no longer just reserved for situations where the employee is demoted or fired.

With that decision in 2006 and the Supreme Court’s more recent decision in Crawford, holding that the anti-retaliation laws cover a person who simply provided information of unlawful activities in response to questioning by the employer, the application of the anti-retaliation provisions of the various federal laws is expanding. According to the most recent statistics released by the Equal Employment Opportunity Commission, in fact, claims of retaliation jumped by some 22.6 percent in fiscal 2008 to 32,690 claims from 26,663 filed in 2007.

All said, the job of the human resources practitioner in dealing with the anti-retaliation provisions of the various federal employment laws continues to get a lot harder. Not only are the actions that constitute retaliation a lot more difficult to pinpoint, but the description of those that come within the proscriptions of the various anti-retaliation laws has now been expanded. To further add to the practitioners’ concerns, more employees are starting to understand the protections of the anti-retaliation laws, as evidenced by the rising number of claims being made to the EEOC. What is an employer to do? Here are some of the most important steps to take:

Analyze current practices and policies
An employer’s first step should be to review its current employment practices and policies. Employers need to ensure that the expanded scope of the anti-retaliation laws is recognized by the practices and policies they have designed to prevent retaliation in the workplace. The policies must be set up to catch situations where there are materially adverse employment actions being taken against employees who complain or were direct participants in an investigation of a complaint. They must also protect against actions that fall well short of a termination or demotion and involve individuals who informally or indirectly make allegations of unlawful employment actions.

Employers should further consider designing their policies so that first-level managers or supervisors are not allowed to act single-handedly when the targeted employee is one who has made statements about unlawful conduct in the workplace, no matter how innocuous the manager’s action might seem. A second-level review of an action being contemplated against an employee who has provided information to the employer about allegedly unlawful actions gives the employer a better opportunity to spot manager steps that could be viewed as retaliatory and intervene.

Furthermore, employers need to ensure that the policies allow employees to voice their concerns and complaints. Not only should employees have several avenues to have their issues heard, but HR staff should be immediately involved anytime such a concern or complaint is made so that such claims can be investigated in an unbiased way and appropriate actions can be taken based on any subsequent findings.

Good policies are only good if everyone knows about them. Consequently, the second step to preventing a retaliation claim is to make sure that managers and employees are all trained on the policies. Managers and supervisors in particular need to be trained to take seriously every situation where an employee provides information about a potentially unlawful employment action. They should be instructed that they cannot take any action against that employee because of any such actions. They should also be trained to recognize that the actions they take could trigger anti-retaliation laws. They should understand the need to involve human resources or other management whenever those situations arise.

Listen to everyone and encourage employee interaction
Employers need to pay attention to information given by their employees, regardless of the way in which the information is communicated. Employers should further encourage those employees who do make complaints, or provide information about a potentially unlawful activity, to follow up with human resources or management if additional facts or complaints arise in the future. The more open the lines of communication, the harder it will be for employees to later claim that some action taken against them was designed to dissuade them from complaining.

In the end, the popularity of retaliation claims continues to increase. This popularity is due, at least in some part, to the Supreme Court’s removal of some of the technical interpretations of the anti-retaliation laws that employers previously relied on to defend against these claims.

Crawford is the most recent step in this evolution. Employers must now be vigilant in ensuring that any employee who provides information regarding a potentially unlawful employment action or activity is protected from retaliation. It no longer matters whether the employee in question was one who actually made a formal complaint or whether the employee just provided facts in response to an inquiry by the employer. The Supreme Court has made clear that the anti-retaliation laws protect both the employee making a complaint and the employee who is just responding to questions by the employer. The good news, however, is that by maintaining a vigilant effort, employers can position themselves to defend such claims when they come up.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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