Retaliation Hitchhiker to Workplace Claims

Suppose an employee in your organization submits a written complaint allegingsexual harassment by her supervisor. The supervisor denies the claim and reportsthat the person is a chronic complainer. Nevertheless, a higher-level managerhas the employee moved to a different position just to get the two parties separated.Thus may be born a retaliation claim against the company, with the employee claimingthat the transfer amounted to a demotion and happened as a result of the complaint.

    Consider the following case: In Contreras v. Corinthian Vigor Ins. Brokerage,Inc., Silvia Contreras filed a retaliation claim against her former employerafter Corinthian reported her to the INS for being in the country illegallyand using a fraudulent Social Security number. Contreras alleged that she wasreported in retaliation for filing an administrative complaint for unpaid wagesand overtime pay. The federal district court found in her favor, regardlessof her illegal status, on the grounds that her activities were protected bythe Fair Labor Standards Act and that her complaint was what led to her beingreported.

What’s retaliation?
    In a nutshell, a retaliation claim is one filed by anemployee alleging that he or she has been harmed by some adverse employeraction — an action that adversely affects the employee’s terms and conditionsof employment — taken in retaliation for some prior complaint or protestby the employee. Quite often, a retaliation claim is filed in conjunction withthe filing of the prior claim or protest.

    Once relatively uncommon, retaliation lawsuits filed with the Equal EmploymentOpportunity Commission (EEOC) more than doubled between 1991 and 1998, with31,059 cases filed in 1998. The bad news for organizations is a trend by thecourts to order companies to proceed to trial on claims of unlawful retaliationeven after the original complaint (e.g., for discrimination or sexual harassment)has been dismissed.

    In Kania v. Archdiocese of Philadelphia, a Polish-American housekeepersued her employer for national origin discrimination because of their English-onlypolicy. Subsequent to her claim, she was fired. The court dismissed her originalsuit, holding that the English-only rule was not discriminatory, but it allowedher to pursue a retaliation claim on grounds that she had had a “reasonablebelief” that the English-only rule was discriminatory.

    Companies can find themselves in serious legal difficulties if they crack downon a complainant, regardless of the merits of the complaint. Words of wisdomto employers: forget about the merits of any complaint or claim from an employee;treat all complaints seriously and avoid any hint of retaliation.

    In particular, avoid the following types of action, which are most likely tobe perceived as retaliatory when they come on the heels of a complaint.

• Disciplinary action such as a written reprimand, demotion, or termination.In the case of an employee who has resigned, discipline can be a poor jobreference.

• A change in work conditions, including a job reassignment, changes in jobduties, or change in work schedule.

• Increased or unequal monitoring of activities.

• A poor job evaluation.

• Ostracizing or withholding information from a complaining employee, primarilyby supervisory personnel.

Chilling effect
    The EEOC applies a “test” to a claim of adverseemployer action: Would a particular employer action likely have a chillingeffect on the inclination of other employees to oppose illegal acts? A caseis far more likely to be advanced by the EEOC if it believes that a claimedretaliatory act by an employer is aimed at discouraging others from filing complaintsor protesting some organizational activity.

    Be on guard as soon as you are aware that an employee has made a formal claimor complaint (i.e., engaged in protected activity). To prove retaliation,a plaintiff must be able to show that he/she engaged in a protected activity,and then suffered from an adverse employer action, and that the originalcomplaint was what caused the adverse action. Protected activities include:

• Discrimination Claims. Under Title VII of the 1964 Civil RightsAct, it is unlawful to discriminate (retaliate) against an employee whohas raised a bias or discrimination claim. Protected activity also includesclaims filed in connection with the Americans with Disabilities Act, theEqual Pay Act, the Age Discrimination in Employment Act, and the Familyand Medical Leave Act.

• Information Revealed in Connection with a Claim. Protected activityincludes information revealed while a person participates in an investigation,legal proceeding, or hearing associated with a federal employment claim.

• Sexual Harassment Claims. The 1964 Civil Rights Act also applieshere and is the basis for protected opposition to acts of harassment.

• Whistle-Blowing. Employment discrimination statutes bar retaliationagainst employees who have been involved in protesting what they believeto be illegal activities by an organization.

• Written Complaints and Grievances. Formal complaints, both internaland external, are considered protected activity under the Fair Labor StandardsAct.

    Does someone who files a claim or complaint deservespecial consideration from supervisors or bosses or temporary immunity fromreprimand? Maybe and maybe not, but that is a risky issue for you or your employerto tackle. Better to play it safe and avoid a costly retaliation lawsuit.

What you can do

• Make people aware of the issue. Have written policies banning retaliation(similar to those that ban discrimination and sexual harassment). Zealouslyenforce these policies; disseminate information on them; train managersand supervisors in what types of actions constitute retaliation and howto avoid them. Advise employees at all levels that retaliation will notbe tolerated and will result in disciplinary action.

• Maintain an open-door policy in your human resources department and encourageemployees to report problems to you internally, before they go to an outsideagency or attorney. A good track record on taking complaints seriously andinvestigating them will encourage employees to come forward and, in theevent of a claim, support the organization’s position as a responsible employer.

• Promptly investigate any complaint or claim as soon as it is filed, andnotify your attorney (attorney consultation costs are minuscule comparedto costs of litigation). Counsel the supervisor of a complaining employeeto:

  • Treat that employee in the same manner as other employees with respectto documentation, performance standards, and reprimands.

  • Avoid undocumented job changes, assignments, performance evaluations,or disciplinary actions that may be misconstrued as retaliatory in nature.If necessary to reassign a complainant as part of a “correctiveaction,” try to obtain the person’s informed consent prior to themove.

  • Keep the employee fully informed of organizational and departmentalevents and meetings.

  • If it is necessary to discipline or fire the employee, base decisionson facts and documentation collected independently and not related tothe prior complaint or lawsuit. At a minimum, you need to be able toshow that you would have followed the same course of action with thisemployee whether or not he or she had filed a complaint.

  • If terminating the employee, avoid giving a poor or unfair reference,or references of any sort not mandated, to outside persons.

  • If asked by a government agency such as the EEOC to respond to complaints,follow the agency guidelines in detail.

  • Investigate any allegation of retaliation by an employee that is broughtto your attention. Keep your attorney informed.

• If a retaliation claim is filed, work with counsel to mediate, or if necessaryarbitrate, the dispute. Avoid going to court, if at all possible. Punitivedamages can be high.

• Maintain sound personnel practices and consistently document how all employeesperform. Terminate problem employees early on, before they file a claim.

    There will always be problem employees who will tryto take advantage of legal protections to “milk” the system for allit’s worth. But there will be others with legitimate complaints that deserveto be addressed. The job of deciding who falls into which category is a difficult,often subjective one with plenty of margin for error.

    To be on the safe side, treat all complaints and claimsseriously and fairly, until or unless you are certain that you are dealing witha problem employee or someone with trumped-up charges. If you do have to dealwith a problem employee, keep in mind that it is just this type of person whomay be on the lookout for retaliation or may try to provoke a supervisor intoretaliating. As the old saying goes, an ounce of prevention is worth 10 gallonsof legal cure.