Sections Supplements

Avoiding Retaliation Claims

Some Due Diligence Can Help Employers with This Daunting Task

Massachusetts and federal law prohibits employers from discrimination on a wide variety of bases, including race, color, religious creed, national origin, sex, sexual orientation, genetic information, military status, ancestry, age, or handicap. In order for these laws to have their intended effect, employees need to pursue claims of workplace discrimination without fear of retaliation from their supervisors and employers.

Co-workers and others must also feel free to support victims of discrimination who do come forward without fear that they, too, may be putting their jobs at risk by doing so. Our society has seen the importance of whistleblowers, and what happens when they are ignored, in situations ranging from Enron to events in movies like Erin Brockovich.

Yet courts have expanded the concept of protection from retaliation to the point where many poorly performing employees, sensing discipline or even termination, assert weak or baseless claims of discrimination as a smokescreen in the face of a supervisor’s legitimate criticisms. Recent court decisions seem to give employees who make claims of discrimination a sort of ‘invisibility cloak’ like the one used by Harry Potter to disappear from the prying eyes of his enemies at Hogwarts.

Employers should always address all claims of employment discrimination carefully and thoroughly, but in some cases, employers are forced to simply forego discipline or risk the near-certainty of expensive litigation.

What Is a Retaliation Claim?

Retaliation is a distinct cause of action, motivated at least in part by a distinct intent to punish or to rid a workplace of someone who complains of an unlawful practice.

Employers need to realize that an employee who brings a charge of discrimination as well as a claim of retaliation can bring both claims forward in court. Juries can, and often do, find that an employer did not discriminate against an employee, but retaliated against the employee, often awarding large damages against the employer.

Federal and state laws prohibit a wide category of persons, not merely supervisors or employers, from taking adverse action against a person because he or she has opposed a practice forbidden under discrimination laws or because he or she has filed a complaint, testified, or assisted in any proceeding brought under various discrimination laws. Nor may any person coerce, intimidate, threaten, or interfere with any person for aiding or encouraging another person in the exercise or enjoyment of any of the civil rights granted by federal and state anti-discrimination laws.

Activities protected by the anti-retaliation provisions include speaking to someone at the MCAD, U.S. Equal Employment Opportunity Commission, or another civil rights or law-enforcement agency, or testifying in any proceeding about a charge of discrimination. It can also include complaining to management or filing an internal complaint of discrimination, asking a supervisor or coworker to stop engaging in discriminatory conduct, or cooperating in an internal investigation of discriminatory conduct.

Expansion of Employment Retaliation Claims

The U.S. Supreme Court has continued to widen the courthouse doors to persons claiming retaliation. In June of 2006, the Supreme Court handed down its Burlington Northern and Santa Fe Railway Co. v. White case. Sheila White complained about sexual harassment by a supervisor, and she was subsequently reassigned. She filed a charge at the EEOC and a few days later was suspended without pay for 37 days.

After filing an internal grievance, she was reinstated and received full back pay. She filed a second charge alleging retaliation, and a jury found in her favor, awarding her $43,500 in compensatory damages. The Supreme Court stated that, in order to show a level of harm necessary to support a retaliation claim, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which means that it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.

This standard is a fact-intensive one, and has encouraged courts to allow retaliation cases to go to full jury trials so that these questions as to how a ‘reasonable employee’ would act would be resolved by a jury.

Recently, the U.S. Supreme Court continued the trend toward allowing a wide range of retaliation claims to proceed. Section 1981 of the Civil Rights Act of 1866, a predecessor of Title VII of the Civil Rights Act of 1964, prohibits racial discrimination against those that make or enforce contracts, including employment contracts. On May 27, 2008, the Supreme Court decided the case of CBOCS West Inc. v. Humphries extending Section 1981 to prohibit retaliation against those that seek to “vindicate the rights of minorities.”

Unlike Title VII, which also protects against retaliation, Section 1981 does not require an employee to first file a charge of discrimination, typically within 300 days with the EEOC or MCAD. Consequently, an employee can wait up to four years before brining a wrongful termination or racial harassment claim. While Title VII claims contain caps on certain damages, Section 1981 does not.

One U.S. Court of Appeals has even gone so far as to protect a man who claims he was fired after his fiancée filed a discrimination charge with the Equal Opportunity Commission against their common employer. The 6th Circuit Court of Appeals sitting in Cincinnati stated that Title VII prohibits employers from taking retaliatory action against employees who, although not directly involved in the protected activity, are so closely related to or associated with others who are directly involved that it is clear that the protected activity motivated the employer’s actions.

Discrimination and retaliation claims pose particularly sensitive problems for employees when the complaining employee is still employed by the company. The situation becomes compounded when the employee’s supervisor is also the subject of allegations of discrimination. Tensions may reach the boiling point. Little things can add up. While a snub, a stray remark, or certain looks may not by themselves qualify as adverse actions, the combination of actions may slowly ‘add up to a wound.’ As the Supreme Judicial Court has stated, “One pinprick may not be actionable in itself, and its abusive nature may not be apparent except in retrospect, until the pain becomes intolerable.”

Supervisors often resent being accused of discrimination, maintaining that they are simply enforcing company policies and holding an underperforming employee’s feet to the fire.

Defending retaliation claims successfully can seem hopeless when the employer takes an adverse action, such as disciplining or terminating an underperforming employee shortly after that employee has made a complaint of discrimination. Courts routinely instruct juries that they are permitted to infer retaliation from the ‘timing and sequence of events.’ An inference of retaliation may be drawn if adverse action is taken against a satisfactorily performing employee in the immediate aftermath of the employer’s becoming aware of the employee’s protected activity, or where the adverse employment action follows close on the heels of protected activity.

The terms ‘close on the heels’ or ‘immediate aftermath’ have been expanded to include lengths of time up to four months or more. What is an employer to do? Should he merely wait four months after somebody files a charge of discrimination to even talk about terminating the complaining employee?

Some Practical Tips

1. Train managers in all categories of potential retaliation complaints. The challenge of dealing with possible retaliation claims places a premium on training all managers and supervisors and recognizing categories of potential retaliation claims.

2. Document the company’s business reasons for taking an adverse employment action. Although some employees may believe so, making a complaint of discrimination does not confer immunity upon an employee from discipline or from material changes in conditions of employment, including termination. Documentation in writing, including references to specific written policies, rules, and regulations, are essential. The more documentation, the better. If the employer has a progressive discipline policy, it must be careful to follow each and every step of that progressive discipline system, lest skipping a step would be considered retaliatory.

3. Have a ‘neutral’ party review or administer the discipline. If an employee alleges supervisor discrimination and runs into performance problems, the individual who ultimately administers discipline to address the performance problems should be independent from the accused supervisor. The ultimate decision-maker should be able to demonstrate that she has not merely accepted the recommendations of an accused supervisor at face value, but has made a sufficiently independent determination as to whether discipline or adverse action is appropriate.

4. Investigate all claims of retaliation, and consider using an independent third party to do so. Employers should investigate all complaints of unlawful conduct, including complaints of retaliation. That policy should be in writing and disseminated to all employees. Employers should consider bringing in trained third-party investigators, whether they are consultants or attorneys, to conduct such investigations. A track record for taking all complaints seriously can prove a valuable tool in the defense of retaliation claims. The employer’s goal should be to investigate and judiciously address all complaints of discrimination so that they never ripen into litigation.

5. Consider delaying discipline. An employer needs to consider the timing of taking adverse action against persons who have made claims of discrimination. One of the best defenses against any type of discrimination claim, whether a direct claim of discrimination or retaliation, is that the employer gave the employee a second chance, rather than disciplining or terminating. An employee bringing an unsupported, unfounded claim of discrimination often is an employee who will squander a second chance and commit another workplace rules violation that will justify discipline.

The courts and agencies charged with enforcing anti-discrimination laws will take time to develop workable guidelines on separating legitimate retaliation claims, necessary to protect the right to seek redress for violations of civil-rights laws, from those claims asserted by underperforming employees seeking a legal shield from legitimate discipline. In the meantime, employers need to tighten their policies and practices and ensure that all managers receive appropriate training in preventing retaliation claims.