Retaliation Charges: How to Protect and Prevent

1. Retaliation Charges: How to Protect and Prevent Bolton HR Consulting and Leadership Development

2. Facts About Retaliation-Definitions Retaliation occurs when an employer, employment agency or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.

3. Definitions – Adverse Action • An adverse action is an action taken to try and keep someone from opposing a discriminatory practice, or from participating in a employment discrimination proceeding. Examples of adverse actions are: • Termination, refusal to hire and denial of promotion. • Other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references or increased surveillance. • Any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

4. Definitions – Adverse Action • Adverse actions do not include • Petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation. • Snubbing a colleague, or negative comments that are justified by an employees poor work performance or history.

5. Definitions – Adverse Action • It is unlawful for a worker’s current employer to retaliate against him or her for pursuing an EEO charge against a former employer. • However, employees are not excused from continuing to perform their jobs or follow their companies legitimate workplace rules.

6. Definitions – Covered Individuals • Covered individuals are people who have opposed unlawful practices, participated in proceedings or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals • Example: It is illegal to terminate an employee because his or her spouse participated in employment discrimination litigation.

7. Definitions – Covered Individuals • Individuals who have brought attention to violations of law other than employment discrimination are not covered individuals for purposes of anti-discrimination retaliation laws. • For example: Whistleblowers who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by the EEOC enforced laws.

8. Definitions – Protected Activity • Opposition is informing an employer that you believe that he/she is engaging in a prohibited discrimination. Opposition is protected as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable. Examples are: • Complaining to anyone about alleged discrimination against oneself or others. • Threatening to file a charge of discrimination. • Picketing in opposition to discrimination. • Refusing to obey an order reasonably believed to be discriminatory.

9. Definitions – Protected Activity • Examples of activities that are not protected opposition include: • Actions that interfere with job performance as to render the employee ineffective. • Unlawful activities such as acts or threats of violence.

10. Definitions – Protected Activity • Participation means taking part in an employment discrimination proceeding. Participation is protected even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include: • Filing a charge of employment discrimination. • Cooperating with an internal investigation of alleged discriminatory practices. • Serving as a witness in an EEO investigation or litigation.

11. Definitions – Protected Activity • A protected activity can also include requesting a reasonable accommodation based on religion or disability.

12. Charge Statistics Retaliation Charges – All Statues • 2004 22,740 28.6% • 2005 22,278 29.5% • 2006 22,555 29.8% • 2007 26,663 32.3% • 2008 32,690 34.3% • 2009 33,613 36.0% • 2010 36,258 36.3%

13. Charge Statistics Retaliation – Title VII Only • 2004 20,240 25.5% • 2005 19,429 25.8% • 2006 19,560 25.8% • 2007 23,371 28.3% • 2008 28,698 30.1% • 2009 28,948 31.0% • 2010 30,948 31.0%

14. Charge Statistics Total Charges – 2010 • Race 35,890 35.9% • Sex 29,029 29.1% • National Origin 11,304 11.3% • Religion 3,790 3.8% • Age 23,264 23.3% • Disability 25,165 25.2% • Equal Pay 1,044 1% • Gina 201 .2% • Retaliation 36,258 36.3%

15. Charge Statistics • 2010 was the first year that Retaliation Charges were the highest percentage of all charges. Indications that this trend will continue in 2011. • Claims including a retaliation charge rose by the year ending in 2008 by 23%, while claims that did not involve retaliation rose 12% during the same period.

16. Court Case Thompson v. North American Steel • The issue in this case was can an employee who claims they were fired because his fiancée filed a sex discrimination charge against their mutual employer sue for retaliation under Title VII of the 1964 Civil Rights Act • The ruling was yes they can.

17. Discussion of Protected Activity/Conduct Question: What if an employee files a discrimination charge and loses? Is he or she fair game for retaliation?

18. Protected Activity/Conduct Answer: No, retaliation law protects employees who assert rights protected by law even when employees turn out to be wrong about whether their rights were violated.

19. Protected Activity/Conduct Question: If an employee is engaged in protected conduct, does that mean you cannot terminate their employment?

20. Protected Activity/Conduct Answer: Not at all. It means that their employers cannot fire them or take other material, adverse action for engaging in that conduct. If there are other viable employments issues, those can still be addressed.

21. Protected Activity/Conduct Question: How tangible does the retaliation have to be in order to file suit?

22. Protected Activity/Conduct Answer: The U.S. Supreme Court defined how much the employee must suffer in Burlington Northern & Santa Fey Ry v. White – “an adverse action would have been materially adverse to a reasonable employee or applicant….[A] retaliation plaintiff (must) show that the challenged action might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

23. Protected Activity/Conduct Question: Can a poor job reference on a former employee be considered retaliation?

24. Protected Activity/Conduct Answer: It is possible. Protection from retaliation generally follows employees after they leave employment. As a result the courts have allowed employees to recover damages resulting from retaliatory employer references.

25. Protected Activity/Conduct Question: What evidence is required to prove a retaliation claim?

26. Protected Activity/Conduct Answer: The employee must prove: • They engaged in protected conduct. • They suffered a tangible, adverse employment action. • There is a casual connection between their protected conduct and the adverse action.

27. Protected Activity/Conduct Question: How important is timing?

28. Protected Activity/Conduct Answer: Time is probably the most important evidence of a connection between protected conduct and a reprisal.

29. Protected Activity/Conduct Question: Is there such a thing as retaliation by harassment?

30. Protected Activity/Conduct Answer: Yes. A campaign of retaliatory harassment, even without a discharge or other economic loss, can be a material adverse action if it is severe or pervasive enough to negatively affect an employees ability to do his or her job.

31. Strategies to Prevent Retaliation • Establish a policy against retaliation. • Spell out exactly what retaliation is. • Make it perfectly clear that your organization will not tolerate retaliation from any of your administrators, managers or employees. • Provide the steps to take if an employee feels they have been retaliated against. • Be sure employees know how to access the policy.

32. Strategies to Prevent Retaliation • Conduct Training • Conduct annual training for administrators, managers and employees. This training should include an opportunity to have a open discussion and Q’s and A’s. 10 minute annual videos will most likely not suffice. • Conduct training for all new administrators, managers and employees as soon as possible following their first day of employment.

33. Strategies to Prevent Retaliation • Communicate with the complaining employee. • Explain to the employee that you are taking the complaint seriously. • Tell the employee that you want and need to hear about anything that happens that the employee considers hostile or negative. • Explain what retaliation is and refer them to your policy. Tell the employee that you won’t tolerate retaliation from anyone in the company. • Follow through and follow up in an appropriate time frame.

34. Strategies to Prevent Retaliation • Keep confidential any complaints that you have. • The fewer people who know about a complaint, the smaller the chances are that someone will retaliate against the complainer. • Only talk to individuals that absolutely need to know. • When you talk with individuals explain what retaliation is and that you will not tolerate it.

35. Strategies to Prevent Retaliation • Document, Document, Document • Keep notes of everything you do to prevent retaliation. • Send the complaining employee a letter confirming what you have told them about retaliation. • Keep accurate notes of every conversation you have regarding the complaint filed by the employee.

36. Strategies to Prevent Retaliation • Final Thoughts: • This is about Cultural Expectations and Norms. One of the best prevention and protections is creating or utilizing a business culture that is based on open and honest relationships between Administrators, Managers and Employees. • Build relationships with your managers.

37. Questions and Answers