Retaliation claims are proliferating and are unlikely to subside anytime soon. The EEOC reported that in its last fiscal year, retaliation claims were the most common type of claim asserted in new charges. Some 36 percent of the nearly 100,000 charges filed with the EEOC in its FY 2010 asserted a claim of retaliation. During its current term, the U.S. Supreme Court has continued a trend of issuing rulings that expand anti-retaliation rights of individuals — thereby expanding the risks to and demands on employers. For example, in the March 28, 2011 edition of Legal News: Employment Law Update, we reported on the Supreme Court's ruling in Kasten v. Saint-Goben Performance Plastics Corp., in which the Court ruled that an employee was protected from retaliation even though he had raised his wage complaint only internally and had not filed a claim with any agency or court. In the January 31, 2011 edition of Legal News: Employment Law Update, we reported on the case of Thompson v. North American Stainless LP, in which the Court ruled that an employee who alleged he was fired in retaliation for his fiancée's filing of a discrimination complaint against the same employer.
So what can an employer do to minimize the risk of being the target of a compelling claim of retaliation? Here are just a few steps employers should consider taking.
First, educate supervisors about retaliation. It appears employers generally have not done nearly as good of a job educating and training supervisors on retaliation issues as they have in training on sexual harassment. Yet, there are many more retaliation charges filed than sexual harassment charges. Good training should be more comprehensive than this, but here are some areas that employers should cover when training on retaliation issues:
Who is protected? Generally assume that any current or former employee who does any of the following can be protected from retaliation:
- Asserts a claim that he/she or others are victims of some discrimination, wrongful harassment, retaliation, or wage violation, regardless of whether they assert that claim in court litigation, a filing with the EEOC, DOL, or other state or federal agency, or merely with the employer
- Provides information to the employer in relation to its investigation of some discrimination, harassment, or retaliation
- Testifies or other provides information in court litigation or agency proceedings involving a claim of discrimination, harassment, retaliation, or wage violation
- Any other employee who has a close relationship with an employee who falls in to any of the categories above
NOTE: The person raising the claim need not be correct in that the issue about which he or she is complaining actually constitutes a legal wrong, so long as he or she has a good-faith belief that it does.
From what are they protected? Generally, they are protected from any actions taken against them to punish them for engaging in any of the protected activities described above, including:
- Adverse decisions such as firing, demoting, or cutting pay
- Negative (including passive-aggressive) treatment that would deter a reasonable person from engaging in similar protected activity for fear of suffering the negative treatment, such as excluding the complaining employer from meetings or work-related information, or generally shunning the employee
Second, be sure to oversee any discipline or other adverse decisions involving a person who has engaged in protected activity as described above. While protected employees are not immune from discipline or the application of the employer's regular practices and procedures, employers should ensure that any disciplinary or other adverse decisions involving protected employees are reviewed closely to ensure they are sufficiently supported by facts and are otherwise proper, and not influenced by any retaliatory motive.
Third, give clear directions. To nip possible retaliation in the bud, emphasize to any complaining employees they should report back immediately if they perceive any mistreatment. Tell supervisors involved with a protected employee to play it straight with the complaining employee. In other words, conduct business as usual. Supervise, but do not punish, even passive-aggressively.
While no plan of action can entirely insulate an employer from a retaliation claim being asserted, the three steps described above will help minimize the risks of the employer having liability for retaliation.