Statistics released recently by the EEOC show, as employment practitioners already intuitively knew, that retaliation claims have skyrocketed so that now they are the most frequently filed EEOC claim against both private sector employers and the federal government.
Retaliation claims are serious business, as we have repeatedly warned employers in this blog. As we noted in our blog entry of May 23, 2011, a retaliation claim is far easier to prove than an underlying claim of discrimination, and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is the employee’s filing of a claim or complaint of discrimination, an “adverse employment action” by the employer, and some causal connection between the two.
Moreover, as we mentioned in our May 23rd entry and our entry dated January 25, 2011, the scope of what constitutes retaliation has been expanding so that now it may encompass acts occurring after the termination of employment, as well as claims made by “associates” of employees (known as “associational discrimination” claims). For example, not long ago the Supreme Court held that the anti-retaliation provision of Title VII protects employees from termination where that employee was the fiancé of another employee who exercised her rights under the statute to file a discrimination complaint.
The employer’s best practice in a situation where a discrimination claim has been filed, as we often write, is to take a “business as usual” approach and act as if no complaint had been filed by treating the employee like any other employee; engaging in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, documenting all decisions and pre and post-complaint performance issues that might result in discipline. Finally, anti-discrimination training of managers and employees is key.
In this difficult economy, insecure employees often try to game the system by filing weak or meritless charges of discrimination, knowing that employers are likely to avoid doing anything that might bring on a retaliation claim. The result is that the insecure employee is able to delay or avoid altogether appropriate disciplinary measures or termination. We believe that this likely accounts for the explosive growth of retaliation claims.
Employers must stick to “best practices” – being sued for retaliation may be unavoidable, but avoiding ultimate liability should be the goal.