Walking on Eggshells Avoiding Retaliation Claims When an Employee Who Files a Discrimination Complaint Doesnt Leave

By Mary Birk

Sep. 13, 2006

One of an employer’s hardest management dilemmas, because of the danger of retaliation claims, is when an employee who has made an EEOC claim, or filed a lawsuit alleging discrimination, still works for the employer. Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. It also prohibits retaliation against employees who file complaints of such discrimination.

    Retaliation is any action by an employer that would have deterred a reasonable employee from making a claim of discrimination, had the employee known this action would be taken against him if he complained. An employee can win a retaliation claim even when he does not win the discrimination claim. The anti-retaliation law protects employees from negative consequences for complaining about discrimination, whether the complaint was justified or not. In addition to Title VII, there are many other federal and state laws that also prohibit retaliation.

    Courts give employers little guidance about how to continue to conduct business normally when the complaining employee stays employed by the company. An employer may feel as if it is walking on eggshells when dealing with that employee, afraid everything it does will be misinterpreted as retaliation.

    Unfortunately, there are some employees who try to work the system, knowing the predicament their employers are in when a complaint is made. In fact, some employees make claims of discrimination when they feel their jobs are in jeopardy precisely so that they have the protection of a possible retaliation claim when their employment is terminated or they are disciplined.

    Even a simple decision like deciding which employees to put on a committee, or a decision on who should be given an assignment may be affected. Employers are fearful that not including the complaining employee will lead to a retaliation claim, even though the employee may not be the best choice for that committee or assignment for reasons that have nothing to do with retaliation. The employer’s fear may lead to the disgruntled employee actually receiving more favorable treatment than he would gotten had he not made a complaint.

    The U.S. Supreme Court’s latest decision on retaliation lawsuits, Burlington Northern & Santa Fe Railroad v. White, has made the problem of continuing relations with employees who have made discrimination claims even more difficult. Justice Stephen Breyer, who wrote the decision, expanded the kinds of employer actions that can form the basis for a retaliation claim.

    Previously, in many jurisdictions, an employee had to show that the employer’s actions rose to the level of a material employment decision, meaning one that affects the terms and conditions of employment, such as a firing or a demotion, in order to be the basis for a retaliation claim. The Supreme Court has now weighed in and said that any significant negative action by an employer toward the complaining employee, in or out of the workplace, can be retaliation if it would be enough to discourage an employee from filing a claim.

    The new standard set out by the Supreme Court makes avoiding retaliation claims harder for the employer because there is so much more ambiguity and latitude in which employer actions can be construed as being retaliatory.

    Some actions that have been found to rise to the level of supporting a possible retaliation claim include:

  • Bringing an employee in for questioning after learning they made a claim of discrimination.
  • Denial of promotion.
  • Transferring an employee to another location or position.
  • Changing an employee’s actual job duties, even if the duties are still in the employee’s original job description.
  • Increasing “monitoring” of an employee’s performance or activities.
  • Filing criminal charges against the employee.
  • Giving poor references for the employee, including telling prospective employers that the employee filed a claim for discrimination.
  • Changing an employee’s schedule when change materially affects the employee.
  • Excluding an employee from meetings or training lunches.
  • Granting leave, paid or unpaid.
  • Denying a pay increase.
  • Suspension without pay.
  • Denying previously approved paid time off.
  • Co-worker retaliation or hostility, if severe, and if condoned by the employer.
  • Filing a lawsuit against the employee or a counterclaim in a lawsuit brought by the employee.

    As this list of possible retaliatory conduct indicates, almost anything can be interpreted as retaliation, although the Supreme Court said that “petty slights and minor annoyances” are not enough.

    The dynamics of what goes on after a complaint has been made, both with regard to people’s emotions and their actions, exacerbates the situation with regard to claims of retaliation. A natural response by someone who has had a complaint made against them is to be more cautious and wary around the complaining person. This reaction is not illegal or retaliatory. However, employers must be careful not to allow this level of distrust to cause them to do anything that could be construed as retaliatory toward the complaining party.

    For example, when investigating a claim of discrimination, sometimes an employer learns of improper actions or deficiencies in the performance of the complaining employee. Many times the employer was already aware of the deficiencies but simply had not chosen to address them. Then, during the course of the investigation of the discrimination claim, the employer may decide that, to be fair, it must now address the problems with the complaining party as well as with the employees being complained against.

    However, the employer must consider whether taking action now is going to appear to be retaliation against the complaining employee. What made the employer decide to become more strict, or to discipline the complaining employee? If it is the discrimination complaint, a court may well find retaliatory motives existed. The employer must take the utmost care in making sure no actions are taken that will affect the complaining employee without first undertaking a dispassionate examination of the need and the reason for the action.

    Other times, an employer will make a policy change in response to the claim of discrimination, thinking that by making the company rules more clear, it will help avoid future claims of discrimination.

    But the policy change might adversely affect the complaining employee. In most situations, the time for policy changes is not when the company is in the middle of dealing with a discrimination claim, but at a time when an objective decision can be made.

    Finally, sometimes employers decide to monitor all employees’ actions more closely after a discrimination claim is made, giving more intense scrutiny to adherence to company rules and policies in the face of the additional scrutiny of a discrimination claim. Although the employer may believe this stricter attitude is being applied across the board, the employee who filed a complaint may well believe that the employer’s actions, as it affects him, are being taken in retaliation for his complaint.

    What behavior is acceptable? By and large, an employer can take any actions that have a legitimate business purpose and that don’t have a retaliatory intent or effect on the employee. However, what constitutes a legitimate business purpose can also be a subject of contention. Accordingly, the employer should consider carefully any action that could be construed as retaliatory and determine whether there is a clear business need to take that action.

    Employers might not like it, but they should expect that even those actions that are being taken for a legitimate business purpose will be put under a microscope. An employee who has complained may cry retaliation for any employment action he does not agree with. And although the employer taking the action might not believe the step to be retaliatory, the present law is so unclear that an employer should act with extreme caution. Before taking any actions with regard to an employee who has filed a complaint of discrimination, employers should seek legal guidance.

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