Reduce Retaliation Risk

As employee claims increase, so do management responsibilities.

June 27, 2011

In 2010, employees filed almost 100,000 charges with the Equal Employment Opportunity Commission—a record number.

The number of retaliation charges employees filed now outnumbers discrimination charges. This doesn’t reflect an increase of retaliatory acts in the workplace but the understanding by employees—and their lawyers—that retaliation claims are easier to prove and win in court.

Most laws protecting employees from discrimination or other misdeeds also prohibit retaliation when an employee opposes an unlawful action. Applicable federal statutes include the Age Discrimination in Employment Act, Americans With Disabilities Act, Family and Medical Leave Act, and the Fair Labor Standards Act.

Likewise, some state laws, including whistleblower statutes, also prohibit retaliation. These statutes allow a separate cause of action to be filed if the employer retaliated against an employee who opposed an unlawful action. To win, the employee must simply prove he or she engaged in a protected act and then suffered an adverse employment action by the employer, and that there’s a causal connection.

An employee engages in a “protected act” if he or she opposes an unlawful practice (e.g., discrimination against an employee) or files a charge, testifies, assists, or participates in an investigation or proceeding pursuant to an employment statute.

The U.S. Supreme Court recently held an employee was engaged in a protected act by merely speaking out about discrimination during an internal investigation interview, even though she didn’t file a discrimination complaint with her employer (Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn.).

An employee’s complaint about discrimination or other unlawful acts needn’t even be correct. The employee must simply have a good faith belief that the employer’s conduct was unlawful.

Courts have extended the protection against retaliation even to individuals so closely related to or associated with the person exercising the statutory rights so as not to discourage that person or others from pursuing those rights.

To prevent retaliation claims, employers must understand how broadly courts define “adverse employment action.”

The obvious acts include firing, suspending, or harassing an employee. Less obvious acts can include transferring an employee to new position, conducting a negative performance evaluation, denying a promotion, denying benefits, removing job responsibilities, changing an employee’s schedule, adding less-desirable job duties, and taking certain disciplinary acts.

Legitimate daily business decisions become problematic as they can be misconstrued as adverse employment actions.

In court, an employee can show a causal connection between his or her protected activity and the adverse employment action by:

  • Direct evidence—written or oral evidence of the employer conceding that retaliation was the reason for an adverse employment action or showing the employer’s bias against the employee for engaging in the protected activity; or
  • Circumstantial evidence—close timing between the employee’s protected activity and the employer’s adverse action (temporal proximity), or the absence of prior performance criticism.

Reduce your risk

Be cautious when dealing with employees who have engaged in a protected activity. To reduce the risk of a retaliation claim:

  • Maintain confidentiality. Keep employee claims/complaints confidential to the greatest extent possible to reduce the risk of co-workers or managers mistreating the employee due to the complaint.
  • Update policies to educate employees about retaliation. Explain that employees can and should file a complaint of retaliation with the employer to allow the employer to take appropriate remedial action.
  • Train all managers about these claims and what actions can constitute an adverse employment action.
  • Implement oversights. The human resource department should evaluate lower management decisions that affect the complaining employee’s position to ensure there’s no inappropriate reason for any adverse employment action, and document the legitimate business reasons.

KELLY TILDEN is a shareholder at Farleigh Wada Witt, Portland, Ore.