Legal Update - May 2006
Preventing Employee Retaliation Claims

Employers are increasingly finding themselves on the receiving end of employee claims for retaliation. Between 1992 and 2004, the number of claims filed annually for retaliation with the Equal Employment Opportunity Commission (“EEOC”) under Title VII of the Civil Rights Act of 1964 (“Title VII”) nearly doubled from 10,449 to 20,240. To place the sharp increase in retaliation claims into context, over the same time period the number of discrimination claims filed annually with the EEOC actually decreased. There are many other federal, state and local laws with retaliation provisions that make it unlawful for an employer to take adverse action against employees who engage in a wide range of protected activities. In addition to Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and many state workers’ compensation benefits statutes have provisions that prohibit employer retaliation – to name but a few.

Moreover, depending on the circumstances, businesses that engage in prohibited retaliation may face potential liability for not only compensatory damages, but also punitive damages. Employers must therefore take retaliation claims seriously, and they must act prudently to avoid and minimize the risk of such claims. This Legal Update focuses on retaliation claims in the context of Title VII, which, as the EEOC statistics show, has become a frequent subject of employment disputes and is of special concern to employers.

Claims For Retaliation – An Overview

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin, and further prohibits employers from retaliating against employees who engage in certain protected activities. To establish a claim for retaliation, an employee must show (1) the employee engaged in a “protected activity”, (2) the employer took “an adverse employment action” against the employee, and (3) a causal connection between the adverse employment action and the protected activity. Unfortunately for employers, it is often easier to establish a retaliation claim than a discrimination claim.

Protected activities include an employee’s opposition to a practice reasonably believed to be unlawful discrimination, as well an employee’s participation in an employment discrimination investigation or proceeding. Examples of such protected activities include an employee’s complaint to an employer about alleged discrimination, a threat to file a charge of discrimination, refusal to participate in a discriminatory practice, filing a charge of discrimination, and cooperation with an investigation of a discrimination claim.

The courts are not in full agreement as to what constitutes an “adverse employment action”. Some courts hold that an adverse employment action is limited to “ultimate employment decisions” such as hiring, firing, demotions and denial of promotions. Other courts, however, more broadly view an adverse employment action as any action that materially affects the terms, conditions, or privileges of employment. Significantly, the EEOC has taken an even more expansive view, deeming an adverse employment action to be any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Many employer actions may be considered adverse employment actions under a broader approach, including shift changes, assignment of undesirable job duties, unjustified negative performance reviews, warnings, reprimands, verbal ostracism or hostility, transfer to a less desirable work location, or even placing a complaining employee under surveillance.

A causal link between an employee engaging in a protected activity and an adverse employment action may be shown by direct evidence or, indirectly, by circumstantial evidence. The employer must have knowledge of the protected activity, for an employer cannot take an adverse action because of a protected activity about which it has no knowledge. An inference of a causal connection may be established by a short passage in time between the employer’s learning of the protected activity and the adverse employment action. Yet, even a lengthy passage of time may be insufficient to negate a showing of causation where the employee can still tie the eventual adverse action back to the protected activity. Indeed, in one case, despite a six-year gap that followed an employee’s charge of discrimination, the court held there was sufficient evidence of causation where the employer raised the employee’s earlier unsubstantiated charge of discrimination at a meeting with the employee to review her discharge.

A Painful Irony

The foregoing case and many others highlight an irony about retaliation claims that employers, unfortunately, often learn the hard way: even though an employee’s charge of discrimination may lack merit, an employer’s actions after learning of the charge may nonetheless give the employee a viable retaliation claim. Furthermore, even an employer’s firm conviction that an employee’s charge of discrimination is utterly false will not constitute a defense to a charge of retaliation. On the other hand, the mere fact that an employee engages in a protected activity does not foreclose an employer from taking legitimate disciplinary action where appropriate. For example, an employer may still impose appropriate discipline upon an employee for misconduct, poor performance or for a pattern of unexcused tardiness as long as the employer evenhandedly applies its policies and treats the employee just as it would one who did not engage in a protected activity. But an employer must anticipate that, if it does mete out discipline to a complaining employee, it may well face a subsequent claim for retaliation.

Prudent Employment Practices Can Help Avoid Retaliation Claims

There a number of employment practices and strategies that employers can follow to help avoid retaliation claims. Below are ten suggestions:

1. Employers should have written disciplinary policies and procedures that have been prepared or reviewed by experienced employment counsel.
2. Employers should adopt and distribute to their employees a comprehensive written anti-harassment/discrimination policy that includes a “zero tolerance” policy toward retaliation.
3. All managers, supervisors and human resources personnel should receive training to become knowledgeable about and develop a sensitivity toward the issue of unlawful retaliation in the workplace and how to avoid it.
4. When an employee makes a complaint of alleged discrimination, an employer should clearly advise the employee in writing that it takes his or her complaint seriously, remind the employee of the company’s policy against retaliation, state that the company will not tolerate retaliation, and request that the employee immediately report any instance of alleged retaliation to designated management.
5. If an employer contemplates imposing discipline or other adverse action against an employee who has alleged discrimination, it is advisable that (a) there be a sufficient time period between the claim and the action, and (b) the claim not be referenced.
6. In the event an issue arises that may require discipline or other adverse against a complaining employee, an employer should explore the possibility of having a person in management who has no knowledge of the employee’s prior complaint investigate the situation and be the decision-maker.
7. An employer should take great care to ensure its decisions with respect to a complaining employee are fair and objective and treat a complaining employee consistently with other non-complaining employees based on an even-handed application of its employment policies.
8. All complaining employees should be treated with the respect and dignity.
9. Employee performance problems should be well documented, as should any counseling provided to address such problems.
10. An employer should seek the advice of experienced employment counsel as soon as it learns of an employee complaint of discrimination or retaliation.

Retaliation claims can be costly to defend, highly disruptive to an employer’s business, and expose an employer to considerable liability. There are many effective strategies and practices an employer may use to help avoid employee retaliation claims. As the old adage goes, an ounce of prevention is worth a pound of cure.

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