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Retaliation Claims Move to Top of EEOC List

29 July 2010

When you take adverse employment action, you need to guard not only against discrimination charges but also against retaliation claims. Learn the basics of retaliation claims and find out four steps you should take to limit your exposure.

The latest Equal Employment Opportunity Commission (EEOC) statistics show that retaliation claims continue to be filed against employers in record numbers. Employees often file retaliation claims when they feel their employer has discriminated against them for exercising a legally protected right. Most federal discrimination laws specifically prohibit retaliation against individuals who exercise their rights under the statutes. In addition, state workers’ compensation laws and the National Labor Relations Act also prohibit retaliation.

How serious a problem is retaliation? These claims are now the most- filed claim with the EEOC and account for 36% of discrimination claims filed in fiscal year 2009, just edging out race discrimination claims for first place. In fact, employees are increasingly succeeding in retaliation claims even when their underlying discrimination claims are dismissed. Accordingly, you should make sure you review every termination decision to ensure retaliation has not occurred and follow the four tips we provide to limit your exposure.

(Download free Termination of Employment model policy including retaliation, COBRA, HR best practices, and legal background .)

* Discrimination Laws and Retaliation *

Federal discrimination laws specifically prohibit retaliation against individuals who oppose practices made unlawful by those statutes, including Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). Most state discrimination laws contain similar protections. Both former and current employees are protected from retaliation under federal discrimination laws.

To be successful with a retaliation claim, employees generally must prove the following three elements: (1) that they engaged in a legally protected activity (such as filing a discrimination claim or opposing discrimination); (2) that they suffered an adverse employment action (such as termination); and (3) that there is a causal connection between the protected activity and the adverse action. In addition, according to the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), Title VII also prohibits retaliation that is not directly related to employment or that causes the employee harm outside the workplace. For a claim to be actionable, a reasonable employee would have to find the retaliatory action to be “materially adverse,” meaning that the actions against the employee produce significant harm.

The first two elements of a claim are relatively easy for employees to prove; therefore, most retaliation cases turn on whether there is evidence of a causal connection between the adverse employment action and the protected activity. Courts often will find a causal connection when the time interval between the protected activity and the adverse employment action is relatively brief and the employee presents evidence that the protected activity was a substantial or motivating factor in the employer’s action.

* Retaliation Claims Can Succeed Where Discrimination Claims Do Not *

An interesting feature of retaliation claims is that they often are filed as part of a larger discrimination case. Employees who bring good faith discrimination claims are shielded from retaliation even if their complaint is ultimately determined to be meritless. As a result, employees include retaliation claims as part of their underlying discrimination complaints and often succeed with these claims even when their discrimination charges are dismissed.

For example, in Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840 (7th Cir. 2007), a nine-year employee, who could not prove race and national origin discrimination, was allowed to go forward with his retaliation claim. He was fired just days after he filed an EEOC discrimination charge and had never received any performance warnings until he complained to his supervisors about discrimination.

* Workers’ Compensation Claims Often Target Retaliation *

The exercise of other legal rights, like filing a worker’s compensation claim, also has been recognized as protected activity. In fact, most state workers’ compensation laws specifically contain retaliation provisions. These prohibit employers from taking adverse action against employees because they have asserted or filed a claim for workers’ compensation benefits, or have testified in a hearing or otherwise participated in a workers’ compensation proceeding.

Some courts have even extended this protection so that an employee who files a workers’ compensation claim is protected not only from retaliation by the employer against whom the claim is filed but also is protected from retaliation by a subsequent employer.

* Union Activities Also Protected *

Retaliation claims often are the basis of National Labor Relations Act (NLRA) claims, too. The NLRA prohibits reprisals against employees based on union membership, organizing efforts, and other concerted activities protected under the Act. For example, in Hosp. Cristo Redentor, Inc. v. NLRB, 488 F.3d 513 (1st Cir. 2007), the court found that the policy violation reasons the employer gave for suspending and terminating an emergency room nurse involved in a union organizing campaign were merely a pretext for its anti-union hostility. The court cited the fact that the hospital issued the nurse’s first disciplinary warning only after he became a union delegate and then followed with a series of warnings about “attitude problems” it linked to his expression of dissatisfaction with working conditions. In addition, the court also relied on evidence of conversations in which management linked his union activities to his failure to be promoted and to the reason he was “always in trouble.”

* Four Tips to Prevent Retaliation Claims *

As the discussion above demonstrates, retaliation claims can be as big a problem as any initial claims of discrimination, workers’ compensation, or NLRA violations. You need to be aware, too, that many other federal laws prohibit retaliation for exercising protected rights, including the FMLA, the FLSA and USERRA. Accordingly, as a way to limit your exposure to all retaliation complaints, you should take the following four steps:

1.Make sure that managers follow your termination procedures consistently. Managers should be required to consider their motives before terminating an employee and should be able to show they are treating the employee fairly and consistently. They clearly must not appear to target anyone who has made a discrimination claim or participated in a protected activity.

2.Document termination decisions to show the nondiscriminatory reasons for the action. You should provide an accurate accounting of the facts behind the decision and any steps taken prior to the termination action (such as counseling sessions and warnings to improve). These records can be a critical defense if you have to justify your actions externally or defend a lawsuit.

3.Review all termination decisions before implementing them. In particular, when the employee has been involved in a discrimination claim or is otherwise protected from retaliation, a termination recommendation should be reviewed before finalization by the HR department or someone at least one level of management above the immediate supervisor.

4.Implement and enforce clear “no retaliation” policies so that managers and coworkers understand the seriousness of the issue. For example, harassment, equal employment opportunity, and complaint policies should state plainly that you prohibit retaliation against employees who make complaints or provide information about discrimination or other protected activity. In addition, managers should be trained to know what actions can be interpreted as retaliatory.

(Download free Termination of Employment model policy including retaliation, COBRA, HR best practices, and legal background.)

Plaintiffs’ attorneys representing your employees now routinely add retaliation claims to their laundry list of allegations in discrimination and other complaints. By taking the above simple steps, you improve your defenses and the odds of winning if your organization gets caught in this trend. And, just as importantly, you are reducing the chances employees will feel unfairly treated in the first place.

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