Avoiding Retaliation

Avoiding Retaliation

Retaliation Rates on the Rise • Surpassed Race as Category with Most EEOC Filings in 2010 • The U.S. Equal Employment Opportunity Commission (EEOC) reported that retaliation charges have skyrocketed during the last decade. With more than 36% of the charges filed under all civil-rights statutes in 2010, retaliation surpassed race as the type of claim filed most often. One employment litigator commented, "Practitioners have awoken in the last decade to the need to include retaliation in their cases. Fundamentally, juries may or may not agree with you about sex or race discrimination, but every one of them who has ever worked understands retaliation."

Overview • When an employee accuses a supervisor of misconduct, it may be difficult to treat the employee impartially • Supervisor may take a defensive position • Supervisor may want to treat the employee with disdain or bias A supervisor who takes adverse action against a complaining employee may face a claim of retaliation Every supervisor must understand retaliation and how to avoid it

What Is Retaliation? • Retaliation claim is a three-step process • Employee engages in a protected activity such as making a complaint or participating in an investigation 2. Supervisor takes adverse action against the employee, such as termination, discipline, transfer or other unwelcome treatment 3. Employee shows supervisor took adverse action because of protected activity Consider subjective factors when determining whether an action is "adverse"

What Is Retaliation? (cont’d) • Retaliation claim is a three-step process • Employee engages in a protected activity such as making a complaint or participating in an investigation 2. Supervisor takes adverse action against the employee, such as termination, discipline, transfer or other unwelcome treatment 3. Employee shows supervisor took adverse action because of protected activity Consider subjective factors when determining whether an action is "adverse"

Pop Quiz! • Ed filed a complaint against his supervisor, Maria. Maria's other employees have taken her side and have stopped inviting Ed to weekly training lunches. What should Maria do? • Nothing — this is just between co-workers. • Intervene if it goes beyond lunch invitations. • Tell the employees to stop singling Ed out for mistreatment.

Why Retaliation Matters • All supervisors and managers must take retaliation seriously • Penalties for retaliation are severe and supervisors may be held personally liable in some cases • Retaliation claims are hard to defend • Retaliation claims can exist independently of an underlying wrong • Internal complaints are better than external ones (e.g., to the EEOC)

Retaliation Considerations • Before making decisions that affect an employee who may have engaged in protected activity, consider — • Whether the decision appears connected to the protected activity • Why you are taking the action • Whether you would take the same action against other employees • How the employee or an objective observer would view this action Treat a complaining employee with respect and ensure others do the same

Pop Quiz! • Roger, an XYZ Inc. manager, supervises Jan, who recently filed a complaint against XYZ. Roger needs to make a lot of scheduling changes, including one that will affect Jan. Should Roger make the changes he has in mind? • Yes, as long as he isn't doing so to retaliate against Jan. • Maybe, but not without taking into account how it will affect Jan. • No, because Jan has complaint pending.

Sound Management Practices • To avoid retaliation issues, adhere to sound management practices • Make all employment decisions for sound reasons and in a timely fashion • Don't label employees, especially in writing • Don't mention an employee's protected activity when documenting employment action • Avoid disparate treatment among employees, especially as to discipline

Sound Management Practices (cont’d) • To avoid retaliation issues, adhere to sound management practices • Make all employment decisions for sound reasons and in a timely fashion • Don't label employees as “troublemakers,” “complainers,” etc. • When documenting employment action, don't mention an employee's protected activity unless that activity is directly relevant • Avoid disparate treatment among employees, especially as to discipline

Alert! • Documentation Tips • Prompt documentation of all your employment actions is your best defense against a retaliation claim. You can protect yourself from the penetrating gaze of 20-20 hindsight by following these tips when preparing documentation: • Be accurate and truthful: Deliberate deceit or exaggeration may well come back to haunt you. • Be thorough: At a minimum, in the case of discipline for example, your documentation should describe the employee's misconduct, recount the employee's explanation of his or her behavior (if any), and explain the action you took and your reasons for doing so. • Review your documentation: Re-read what you've written from the perspective of someone unfamiliar with the employee and the incident. Does it communicate valid reasons for your action and explain why you acted fairly under the circumstances? • Have someone else review it: In particularly difficult situations, ask someone from HR or the Legal Department to review your documentation.

Responding to Complaints • When receiving complaints — • Listen carefully and take all complaints seriously • Assure the employee there will be no retaliation for coming forward 3. Know our policies and procedures for responding to complaints 4. Do not promise the employee absolute confidentiality 5. Report complaints to Human Resources and/or the Legal Department Make clear your willingness to receive any complaint and take appropriate action in all cases

Final Quiz

Questions?

Thank you for participating! This course and the related materials were developed by WeComply, Inc. and the Association of Corporate Counsel.

Avoiding Retaliation