THE RETALIATION CLAIM

1. THE RETALIATION CLAIM A Legal Minefield For Employers

2. Retaliation Claims • A favorite new employee claim • EEOC filings up dramatically • Included in 1/3 of all discrimination suits • A “high risk” exposure for employers

4. Understanding the Retaliation Claim “10 Questions”

5. 1. “Retaliation” Law – What Is It About? Protection for an employee who complains about or opposes illegal employer activities

6. 2. Retaliation Claims – What Legal Basis? • Federal law • Title VII, Civil Rights Act of 1964 • Other Civil Rights Laws – ADA, ADEA, FLSA, FMLA, OSHA • Federal Claims Act and Whistleblower Protection Act • First amendment, U.S. Constitution

7. 2. Legal Basis (cont) • State law • Workers’ Compensation Laws • Whistleblower Statutes • Miscellaneous Laws • Statutory “right to complain” • Focus of discussion – Title VII

8. 3. What Are Protected Activities? • “Participation” activities • Filing a claim with EEOC or in court • Assisting with EEOC or court proceeding(providing information or testimony) • Advising another employee re rights • Narrow (covers few activities) but deep (absolute) protection

9. 4. Any Activities Protected Beyond Filing Claim/Suit? • “Opposition” activities • Protesting/complaining about discrimination • Refusing to carry out unlawful order • Opposition to activity of co-worker • Opposing discrimination outside workplace • Broad (covers many activities) but shallow (less absolute) protection

10. EMPLOYER ACTION Alleged act of discrimination EMPLOYEE RESPONSE Participation Opposition

15. 5. What Employer Actions Amount to Retaliation? • “Ultimate actions” only • Position of several circuits • Involves hiring, promoting, firing, determining compensation • “Employer-friendly” position

16. 5. Employer Actions - Retaliation? (cont) • “Material adverse change in employment terms” • Rule for most circuits • May involvedemotion, reprimand, negative job evaluation or reference, refusal to grant normal benefits or office privileges, disadvantageous transfer, harassment, countersuit • More “employee friendly” position

17. 5. Employer Actions – Retaliation? (cont) • EEOC position: any action that may deter employee from exercising rights • Most “employee-friendly” position • Few courts have adopted • Some (few) types of unfavorable treatment fall short of retaliation

18. EMPLOYER ACTION Alleged act of discrimination EMPLOYER RESPONSE Adverse Action EMPLOYEE RESPONSE Participation Opposition RETALIATION

19. 6. Discrimination Claim Fails – Status of Retaliation Claim? • Judicial view: retaliation claim may still succeed - “right to be wrong” • A not infrequent outcome • Evidentiary and “human nature” differences in two types of claims

21. 7. What About the “Preemptive Strike” Employee Strategy? • Applies only to “opposition” claims • Strategy: Anticipating adverse action, employee presses discrimination claim; then cries “retaliation” when adverse action administered by employer • The legal reality: • Employee must have good faith belief that discrimination occurred; and • This belief must be objectively reasonable

22. 8. Are There Limits on anEmployee’s Opposition Activities? • Illegal conduct not protected • Lawful but “objectionable” actions • Violation of policy • Disruptive activities • Communication with external parties • Usually protected • “Loyalty” argument by employer • Judicial rule of “reasonableness” applied

23. 9. Who Can Claim Protection from Retaliation? • The victim • A protesting employee who is not a victim • A protesting employee who is not in a protected class • A protesting employee who is related to or associated with the victim • A former employee

24. 10. How to Avoid Liability? • Have clear anti-retaliation policy • Inform and train work force about policy • Follow a “zero tolerance” approach for retaliatory actions • Understand breadth of “protected activities” and “adverse action” under the law

25. 10. How to Avoid Liability? (cont) • Forward all discrimination complaints to HR for proper management and monitoring • Handle retaliation complaint as separate grievance • Endeavor to carry on “business as usual” in dealing with complaining employee

26. 10. How to Avoid Liability? (cont) • Follow common sense guidelines • Check for unquestioned non-retaliatory reason • Be consistent with institutional and departmental policy • Be consistent with treatment of other employees • Be consistent with past treatment of employee • Scrutinize timing

27. 10. How to Avoid Liability? (cont) • Document • Carefully evaluate continuation of internal grievance process after external claim filed • Always consult HR and legal personnel

28. “You cannot get ahead while you are getting even.” Dick Armey • “Mankind must evolve for all human conflict a method which rejects revenge, aggression, and retaliation. The foundation of such a method is love.” Martin Luther King